There are a variety of sources that illustrate what the Law Society is apparently relying upon to prosecute Joe Groia. Here are a few. It is difficult for us to understand how any of this was or could possibly be improper, must less constitute professional misconduct.
The Reasons of Justice Archie Campbell
(1) It is improper for the prosecution to seek a conviction
It is trite law that the prosecution is not supposed to seek a conviction. They are only supposed to make sure justice is done. The statement by OSC spokesperson Frank Switzer on the first day of the Felderhof on the courthouse steps was that the OSC was "simply seeking a conviction". Justice Hryn said it was wrong. Groia argued that it was wrong and demonstrative of the attitude of the OSC towards Felderhof (and with respect, it would appear he was right).
Justice Campbell split hairs between "simply seeking a conviction" and "seeking a conviction". He is entitled to do so as a judge, but, Groia can hardly be faulted for following an interpretation, accepted by the judge Groia was appearing before, that was only modified by Justice Campbells' gloss added after the fact.
(2) Groia used irony, sarcasm, and petty invective
Irony? Irony is wrong? It is used for making a point. As is sarcasm. And with respect to both the Law Society and Justice Campbell, Mr. Naster for the OSC was at least as guilty if not more when it came to sarcasm.
As for the "petulant invective", Justice Campbell never specified exactly where those offending words occurred and although Tom Curry may have read some excerpts that might qualify, we will have to wait until argument before he identifies for us which quotes are covered under the rubric of petulant invective.
(3) "Get him over here"
Joe Groia was cross-examining a witness. He wanted to put a document to the witness. Mr. Naster objected because the document had not been admitted and the witness was not the author. The author was a reporter who had interviewed the Chair of the OSC, a Mr. Brown. So, Groia said "let's get him over here."
This happens every day when there is a problem with authenticating documents. Note that Justice Campbell cribbed the quote to "get him over here" which inaccurately paints Groia in a more negative light than he is perhaps entitled to.
There are other specific examples. As for the general issue that Groia turned the issue of prosecutorial misconduct to a question of personal integrity, with respect to Justice Archie Campbell, it is suggested that this is simply wrong. There is no indication that Joe Groia did anything other than raise the issue as a matter of law and conduct. It was Jay Naster who reinterpreted the issue as an attack on his personal integrity.
With further respect to both Mr. Naster and Justice Campbell, it is suggested that this was a garden-variety attempt at deflection. When someone accuses you of something, you deflect the inquiry by attacking the person for making the accusation to avoid having to defend against it. And incidentally, this form of "defence by deflection" is most commonly used by people who don't have a defence on the merits.
Specific Snippets Read at the Hearing
For those in attendance, it was a waiting game while Tom Curry read and read. Where was the maximum mean that we had been inferentially promised by the nature of the Groia proceedings. It never materialized.
Here are some of the examples (roughly paraphrased) of what we heard:
- Should we have to do the work because the prosecutor is too lazy to do it themselves? This was in response to a mess that the OSC had made of the documents that they did not want to fix. Calling them lazy was better than the alternative, which was that the OSC was deliberately messing around with production to cover the weaknesses in their case, something that they may never have gotten to, but was certainly lurking in the background.
- The thin-skinned prosecutor ... Like the thin-skull principle, a common turn of phrase, not at all offensive, and probably accurate.
- Casting the prosecutor in the most unfavourable light .... raising the possibility of their improper motivation ... misleading the court ... All this is part and parcel of the emerging issue of potential prosecutorial misconduct. Misleading the court, for example, would be an instance of prosecutorial misconduct.
What was most difficult to understand were the references to Mr. Groia's turn of phrase.
Groia kept saying the OSC won't separate the wheat from the chaff. But, that is not only an apt metaphor, it is the metaphor used by Justice Spokina in the Stincombe decision which was what Groia was talking about when he raised the decision. It was a metaphor; it wasn't even his.
Groia also suggested that the OSC had a "conviction filter" and had "stacked the deck" against Felderhof, this in connection with his argument that Felderhof was not receiving a fair trial. More metaphors and fairly accurate ones.
One segment of the hearing ended without anything that could possibly considered interesting, much less offensive, other than "the prosecution wants to have its cake and eat it too". Not just a metaphor, but a rather over-used cliche.
With these as examples, one is left with the impression that you can be disbarred as a lawyer for using too many metaphors, and excessive cliches.
The only example we saw that might possibly, if stretched and if you were really sensitive, was the Mickey Mouse comment. Mr. Groia would be able to help explain this better, but there was some objection by Mr. Naster to a question Mr. Groia had asked and Naster's argument was that you had to ask someone else the question before you could ask this witness. Groia went off on a bit of a tirade: "do we have to ask this so-and-so or that so-and-so, etc. , etc, ... do we have to ask Mickey Mouse what he thinks" (Apologies for inaccuracies. This one went by very fast).
As far as this author could tell, Groia used a silly example to illustrate what he thought was a silly objection. It appeared to be justified and whatever "attack" it represents was an attack on the OSC position, not on Mr. Naster himself. Regardless, far from being offensive, this author found it not only effective but funny.
Groia in His Own Words - from the Globe and Mail
On the first day of Joe Groia's hearing, the Globe and Mail posted a list of some of his "sins". In the non-Toronto versions of the paper issue, the article by Jeff Gray was entitled "Biting Words". It was this article that triggered us to consider the Globe and Mail coverage very closely.
None of the examples used by Jeff Gray are particularly shocking or even notable, much less "biting". We found it strange that the Globe and Mail would not note this obvious inconsistency. Jeff Gray did not attend the whole hearing, and spoke mostly to Tom Curry (although this probably was also due to the fact that Groia and his lawyer refused to talk to the media). However, Jeff Gray did seem to be getting notice from Tom Curry as to when "the good stuff" was coming as he was there for the "Mickey Mouse" comment but not for most of the more mundane accusations.
The following are the quotes from the Globe and Mail (August 2, 2011):
- “Their promises aren’t worth the transcript paper they are written on. ... I mean, it’s just – it’s the most nonsensical proposal from a government prosecutor that one could imagine.”
- "They are bound and determined to find some way of stopping this court from ensuring that Mr. Felderhof gets a fair trial, and I say, your honour, that that demonstrates an actual disregard for the dignity of your courtroom and, as I say, there are many judges who ... would find the Securities Commission in contempt.
- “Their conduct from the beginning of this case to the end of this case, in my submission, has been intended to ensure that they make Mr. Felderhof’s life and his ability to defend himself as difficult as possible, and as miserable as possible.”
- “Individually, there may be explanations. Mistakes were made, we’ve been told. We accept that. But when you put them all together, it’s my submission to this court that that shows a pattern of conduct. It shows an animus toward the defence and Mr. Felderhof. And it shows that the Commission is prepared to do just about anything it possibly can, unless the law absolutely insists that they do something different, to avoid being fair to Mr. Felderhof.
- “Somebody needs to tell us we got everything and it’s just not right, in my submission, for the Securities Commission to say we’re too lazy, we’re too busy, we’ve got better things to do than go though the material to try and fix the mess that we have created.”
- “Only if this court is prepared to say that the word of the government is meaningless, that the representations of the government are meaningless, that the statements of the government on the record are meaningless, that you can’t rely on anything the government says anymore, is there any basis for my friend to make the submissions that he’s making.”
- “I didn’t realize that somehow there was now a case out there that said that somehow the defence’s job was to save money for the Securities Commission so things would go smoothly – it would be so difficult – and sacrifice Mr. Felderhof’s rights along the way.”
