“What’s an advocate?”

Partly, that is the query that the Supreme Court docket of Canada must reply after granting leave in the case of Groia vs. The Law Society of Upper Canada. 

For Canadian litigators, this will probably be one of the vital essential selections in a long time as it can outline the moral limits of “zealous advocacy”, how far it may be superior, and what conduct is suitable in pursuing causes and verdicts on behalf of our shoppers.

As Mr. Groia himself said (within the article linked above):

“…the problems that go squarely to freedom of expression of legal professionals, how can we greatest shield shoppers, and is it proper that legal professionals be trying over their shoulders for worry they’ll be the subsequent Joe Groia?”

After we replicate as legal professionals, particularly litigators, the reply is that (in our personal methods) we’re all Joe Groia. 

In 1999, defence counsel Alan Gold wrote:   

The function of defence counsel is an integral and essential ingredient of the elemental constitutional precept known as “the rule of regulation.” Just like the independence of the judiciary, a democracy based on the rule of regulation will need to have an impartial prison defence bar or it is not going to survive as a democracy and the jails will fill with hundreds of Morin’s and Milgaard’s. It’s why undemocratic regimes don’t simply set up corrupt judges but additionally decimate the impartial defence bar to silence freedom’s voice. It’s why the prison defence bar has been known as “freedom’s champion.”

Like many defence legal professionals earlier than him, Mr. Groia took on a really unpopular shopper and case.

In 1999, the local weather of prosecution was backed by scandal and fraud on Canadian buying and selling markets. The treasure was gold, the corporate was Bre-X, and the villain was John Felderhof.

Mr. Felderhof was alleged to have engaged in insider buying and selling and subsequently prosecuted because the lone accused underneath sections 76 and 122 of the Securities Act, R.S.O. 1990, c. S.5. Joseph Groia acted for Mr. Felderholf in an extremely acrimonious, disjointed, and closely contentious trial that spanned over a number of years. Throughout this course, counsel for the Ontario Securities Commission (the OSC) complained to the Court docket about Mr. Groia’s conduct.

Unhappy with the inadequate corrective measures by the trial choose, the OSC sought an order by a reviewing Court docket to have the trial choose eliminated.

As set out within the Factum of the Appellant (Groia) to the Law Society Appeal Tribunal: 

Transferring ahead, it seems Mr. Groia accepted this criticism. His complained of conduct ceased. Throughout this time, no grievance was made to the appearing regulatory physique of Ontario legal professionals – Law Society of Upper Canada.

The trial continued and in the top, Mr. Felderhof was discovered not responsible of all 9 counts alleged. The case led to exoneration and vindication for Mr. Felderhof; for Mr. Groia, the story of vilification (and maybe vindication) of his advocacy had simply begun.

The Bre-X case was described as “essentially the most infamous saga in Canadian mining historical past. Bre-X claimed it had found enormous quantities of gold within the Busang area of Indonesia.The corporate’s shares soared from penny stockstatus to greater than $200 a share.”

The acquittal of Mr. Felderhof, and billions of {dollars} misplaced in investments, was not obtained effectively by the general public.

On the time of acquittal, the OSC advised the CBC that “These have been critical fees and it was applicable to convey them earlier than the courtroom…”  and that “We are going to evaluation the choice and take into account our subsequent steps.” In August of 2007, with none rationalization, the OSC suggested that regardless of every part, they’d not appeal the conviction of Mr. Felderhof.

The biggest case in Canadian Securities safety got here to a finish. Nonetheless, the case for Mr. Groia continued.

In 2009, the Regulation Society started a disciplinary continuing in opposition to Mr. Groia (notably not in opposition to the OSC counsel who have been topic to related criticism for incivility by Campbell J.)

The Regulation Society discovered that he had engaged in skilled misconduct on account of his advocacy at trial. He unsuccessfully appealed to the Law Society Appeal Panel and prices have been awarded in opposition to him. Mr. Groia appealed additional to the Divisional Court, then to the Court of Appeal of Ontario – each appeals have been additionally dismissed.

Which brings us to the current day and the granting of go away by the Supreme Court docket of Canada to resolve the query famous above “What’s an advocate?”

What’s our function? What are our limits? How far can we go in zealously pursuing the curiosity our shoppers whereas balancing our obligations to the Court docket and our respective regulatory our bodies?

Each Canadian lawyer has their very own views on how this determination ought to finish, and what it means to zealously defend our shoppers.

For me, the selections and of the Regulation Society, and the Court docket selections that observe it missed the mark of what it means, and extra importantly, what’s required of an advocate.

An advocate tries to be civil, however we stay in a world the place at occasions, civility should yield to points which might be way more essential.

Civility is a nebulous idea. It’s one simply misaligned with improper dissent or disruption even when that concordance is by-product from the pursuit of justice. We attempt our greatest as advocates to rise above, to be civil, however at occasions the problem is so controversial or opposed that the mere objection to it may be characterised as uncivil itself.

It should not be forgotten that among the best accomplishments within the wrestle for human rights have been marred by disruption of far better sins than incivility. Whereas it’s true that human rights is just not the problem because it pertains to Mr. Felderhof, however the means by which he obtained his acquittal are synonymous with the means by which equality and fairness is achieved for others.

All that mentioned, being “civil” in courtroom is in 99.9% of the time the simplest technique for persuasion.

Nonetheless, there are two main considerations that I’ve in regards to the Groia determination and the seeming paramountcy of “civility”:

First, “civility” is idea that may by means of its ambiguity be simply used to invalidate and alter the vary of permissible advocacy.

I’m fairly certain that many (notably within the public) would characterize Ms. Henein’s advocacy as “uncivil” or abusive within the Ghomeshi trial regardless that there might be nothing farther from the reality. This ambiguity of “civility” is extremely vulnerable to this very kind of mischaracterization and politicized stress that’s routine in circumstances of excessive public curiosity and controversy. It’s all too simple to conflate the notion of “incivility” with uncompromising and efficient defence methods and it is a main concern within the determination of Groia that impacts all legal professionals.

Secondly, the swords that an advocate chooses to stay or die by is theirs and theirs alone. Mr. Groia determined that no matter he did was essential to defend his shopper (efficiently) and fulfill his duties as counsel.

Maybe it may have been carried out civilly, maybe not. Possibly it really works earlier than some judges, and never others. Nonetheless, legal professionals, shouldn’t be enjoying arm-chair quarterbacks to how a case must be approached as it’s the lawyer themselves that should face the results of their selections for higher our worse. Wanting abusive conduct the Courts can’t deal with (or lies exterior their jurisdiction), legal professionals and the regulatory our bodies that govern us ought to keep out of “incivility” that happens inside the Courts.

Immigration legal professionals preventing the injustice of the current government orders aren’t “civil” within the minds of the current administration. If something, they’re engaged in civil disobedience, for they’re advocates.  They’re disruptive forces in opposition to what’s perceived by many as injustice and illegal acts. They accomplish that not for the sake of civility, however for the sake of what’s proper and what’s in the very best curiosity of their shoppers and the injustice that’s compelled upon them.

The checklist of historical past’s most essential trials is lengthy however few of them could be described as “civil”.

If something, essentially the most significant and pivotal trials and accomplishments of authorized advocacy in historical past have been full of acrimony, dissent, and controversy. To call a number of: Roe vs. Wade, Sacco Vanzetti Massachusetts v Bartolomeo, the Scopes (monkey) trial, the Rosenberg trial, (Hurricane) Carter trial, O.J. Simpson

Which one, of any of those could be primarily characterised as “civil”? 

For it’s justice that should prevail, nothing roughly. Whilst the Regulation Society’s motto itself holds: “Let Proper Prevail” Civility is solely a desired, however not needed means to attain it.

So what then is an advocate? For my part, it’s somebody who says what must be mentioned, argues what must be argued, settles what must be settled. It’s somebody who pursues justice, and solely justice, although the heavens might fall. (Deuteronomy 16:20).

That is the advocate that Joe Groia was and is.  That is the advocate all of us are at our greatest of occasions. Our shoppers deserve this as does the justice system – something much less and the trisymmetrical stability will topple.

I’ll say it once more, civility is a method to this finish; it’s not the top itself.   Civility is an efficient and desired device of advocacy, it’s not the objective.

When these means are unobtainable, or should be compromised, or can’t be corrected – they are often afforded to take a secondary function to the objective of justice that supersedes all.  Civility mustn’t and can’t usurp the very objective of the advocate to pursue what is true, what’s simply.

Luckily, I’m assured that the Supreme Court docket of Canada will facet with Mr. Groia in deciding what it means to be an advocate in Canada.

Let’s hope, as there might by no means be a extra essential time in current human historical past the place advocates like Mr. Groia are wanted most within the tumultuous and unsure years forward.