“A Trial Is Not a Tea Party,” Is What They Will Say

You can expect to hear, “A trial is not a tea party,” from a lawyer on the other side, sometime in the near future.

That lawyer will likely be acting in an obstinate, demeaning, impolite, or even aggressive manner, and this quip will come quickly in defence of their conduct.

The reason I can predict this with absolute certainty is the recent  Supreme Court’s decision in Groia v. Law Society of Upper Canada, released this week, which evaluated the law society’s discipline hearing decision in 2013. The discipline involved Groia’s defence in R. v. Felderhof, of a mining executive against insider trading charges following the collapse of Bre-X Minerals Ltd. Although he was ultimately successful in doing so, there were questions following the trial about the approach he employed.

The Court’s decision was divided, with the majority, written by Justice Moldaver, indicating that the law society’s Appeal Panel decision should be reviewed for reasonableness. They held that the Appeal Panel had erred in finding professional misconduct, and there was no need to remit the matter back to the law society.

A dissent by Justice Côté agreed with the outcome of the majority, but disagreed with the applicable standard of review. She indicated this was an exceptional circumstance that should be evaluated on the standard of correctness, adopting Justice Brown’s dissent at the Court of Appeal.

One of the most controversial elements of this case is that the conduct in question occurred in open court, and the presiding judge did not directly discipline Groia or refer him to the law society. This ultimately formed much of the backbone of Groia’s defence throughout his proceedings at every stage. Justice Côté found that having a lower standard of review would interfere with the administration of justice and judicial independence.

A joint dissent with Justices Karakatsanis, Gascon and Rowe agreed with the majority on the standard of review, but disagreed with the majority’s finding on how the Appeal Panel reasonably applied the contextual approach to assessing professional misconduct, and would have dismissed the appeal. This dissent stated that the majority’s approach reweighed the appropriate evidence to achieve their result, and applied inappropriate deference to the Appeal Panel’s decision.

The catchy phrase about tea parties is cited once, in the opening of the decision by the majority,

[1] The trial process in Canada is one of the cornerstones of our constitutional democracy. It is essential to the maintenance of a civilized society. Trials are the primary mechanism whereby disputes are resolved in a just, peaceful, and orderly way.

[2] To achieve their purpose, it is essential that trials be conducted in a civilized manner. Trials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve.

[3] By the same token, trials are not — nor are they meant to be — tea parties. A lawyer’s duty to act with civility does not exist in a vacuum. Rather, it exists in concert with a series of professional obligations that both constrain and compel a lawyer’s behaviour. Care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are not sacrificed at the altar of civility.

[emphasis added]

Despite these larger contextual factors of trials and their role in our justice system, this decision is far more about administrative law, the level of deference required, and how courts review these decisions, which is largely reflected in the distinctions between the majority and Justice Côté’s dissent, as well as the disagreements observed on this issue by the lower courts (para 44). On May 10, 2018, the Court granted leave in Minister of Citizenship and Immigration v. Alexander Vavilov with two other cases, stating,

The Court is of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 (CanLII), and subsequent cases.

What this means is that the analysis provided here in Groia, and in particular the extent to which courts further review discipline decisions by law societies, may be quite limited indeed, especially if Vavilov confirms or fails to interfere with the presumption of reasonableness for judicial review of a specialized disciplinary body (paras 60-61). It’s even quite possible that the tea parties may again resume.

Relevant to the context of the decision is the Appellant himself, Joseph Groia, who was elected as bencher to the law society in 2015. Some would suggest that his election itself is a repudiation of the law society’s discipline over him, but I would extend caution to that assumption. I also voted for Groia, more because I believe in having diverse and even conflicting voices within governing bodies, to foster better decision making. Managed conflict is the antithesis to groupthink.

However, since his election, Bencher Groia appears to be taking every position possible to reduce the scope and authority of the law society. Perhaps this is understandable, given the very difficult ordeal he has undergone because of the law society. Benchers are not expected to divorce themselves entirely from their experiences, and in fact we often elect them because they can weigh these experiences on to the contemporary challenges facing the legal community.

One particular challenge where Bencher Groia has weighed in on is the Statement of Principles, where he championed the motion that would provide a conscientious objection to this requirement. The motion came after an already lengthy debate on the subject, and an extensive examination of the issues by committee, and only served to stir up unnecessary controversy and even provide indirect support to the legal challenge that is currently underway.

Bencher Groia may have greater difficulty being re-elected in 2019, despite the Court’s finding in his personal case. That’s because on a careful read of the decision, the Court allowed his appeal based on the specific factual circumstances of his case, and not the primary attack on the legislative mandate and authority of the law society, and the test they developed to assess incivility. The Court of Appeal decision stated,

[87] Mr. Groia maintains that trial judges, rather than the Law Society, are best positioned to address in-court incivility by lawyers. He argues that the Law Society cannot, and should not, discipline advocates for their uncivil conduct in court except in three limited situations: i) the advocate has been subject to a contempt finding; ii) both the trial judge’s and the advocate’s conduct are subject to disciplinary review; or iii) the trial judge has severely criticized the advocate’s conduct or complained about it to the Law Society. Notably, none of the many interveners before this court supports this position.

[88] The Appeal Panel and the Divisional Court considered and rejected this argument. They were right to do so. I have no hesitation in concluding that Mr. Groia’s narrow construction of the Law Society’s statutory authority to discipline lawyers for professional misconduct is unsupportable, both in law and in principle.

At para 110, the Court of Appeal describes Groia’s attack on the law society’s incivility test on the following bases:

1. a failure to properly balance the duties of “zealous” advocacy with courtesy and civility
2. not properly accounting for s. 2(b) freedom of expression rights
3. creating a vague and uncertain test that lacks meaningful guidance

The Court of Appeal rejected all of these arguments, which were echoed by some of the interveners. They did not accept the notion of an inherent collision or competition between an advocate’s duties (paras 132, 137), that the law society’s test ignored or discounted expressive rights (para 157), or that it was vague or ill-defined.

The Supreme Court of Canada did not interfere with any of these findings either,

[62] …When developing an approach for assessing whether incivility amounts to professional misconduct, the Appeal Panel recognized the importance of civility while remaining sensitive to the lawyer’s duty of resolute advocacy — a duty of particular importance in the criminal context because of the client’s constitutional right to make full answer and defence. Its context-specific approach is flexible enough to assess allegedly uncivil behaviour arising out of the diverse array of situations in which courtroom lawyers find themselves. At the same time, the Appeal Panel set a reasonably precise benchmark that instructs lawyers as to the permissible bounds of ethical courtroom behaviour, articulating a series of factors that ought generally to be considered when evaluating a lawyer’s conduct and describing how those factors operate when assessing a lawyer’s behaviour. Finally, the Appeal Panel’s approach allows law society disciplinary tribunals to proportionately balance the lawyer’s expressive freedom with its statutory mandate in any given case.

The Court rejected at para 69 the position (also found in the Divisional Court’s decision) that bringing the justice system into disrepute or impacting trial fairness should be prerequisites to a finding incivility. This means that the law society will continue to regulate incivility, and will likely do so by using the test approved by the Court as itself being reasonable. As the Court stated at para 117, “speech is not sacrosanct simply because it is uttered by a lawyer.”

Instead, the majority of the Supreme Court’s finding was based on a factual determination that Groia had an honest but mistaken understanding of the law of evidence, and the role of the prosecution (paras 21, 23). Groia was entirely unsuccessful in his challenge on the ability of the law society to assess his conduct, and his appeal was only allowed based on his inability to proper understand the law in these areas and apply them at trial. The joint dissent of Justices Karakatsanis, Gascon and Rowe rejected the fact that Groia had a reasonable or legal basis for this misunderstanding of law and the allegations he advanced (paras 190, 192).

The Court of Appeal at para 417 indicated that the court, and the law society reviewing the conduct of counsel, is not expecting “a standard of perfection.” It was this honest but erroneous views of the law that the majority at Supreme Court found was, in the very specific context of this case, reasonably based, made in good faith, and could not be reasonably support a finding of professional misconduct (paras 7-8, 21-22).

This leads to the other reason that the Groia decision has some limited applicability. The duty of resolute advocacy reviewed in this decision emerged in criminal law, which “takes on particular salience in the criminal law context” (para 74).

The specific context found in Groia, including questions on the proprietary of state actors, and the fear of reprisal (para 75), do not exist outside of the criminal context. The required “culture change” referred to in the dissent (paras 230-231) has been invoked by the courts primarily in the civil context.

Crown prosecutors, who although operate in an adversarial system, serve the public interest and are not necessarily opposed to the other side in the same way as other proceedings. Ontario’s Crown Prosecution Manual states,

Public confidence in the administration of criminal justice is strengthened by a system where Prosecutors are not only strong and effective advocates for the prosecution but also Ministers of Justice with a duty to ensure that the criminal justice system operates fairly to all: the accused, victims of crime and the public. A Prosecutor’s role excludes any notion of winning or losing. A Prosecutor’s responsibilities are public in nature. As a Prosecutor and a public representative, demeanor and actions should be fair, dispassionate and moderate; show no signs of bias; and be open to the possibility of the innocence of the accused person.

[emphasis added]

The vast majority of incivility, which is admittedly the worst in Toronto than anywhere else in the country, occurs in the context of civil litigation and family law.

It includes snide remarks from senior counsel to junior lawyers about practicing law before they were born. But “a trial is not a tea party,” they will say.

It extends to thinly-veiled comments of a sexist nature from male counsel to female ones about their physical appearances, or to racialized lawyers about their “actual” origins. But “a trial is not a tea party,” they will say.

It also encompasses the sarcasm and petulant tone that can be the hallmark of some renowned litigations in all of their communications. And although they too will say “a trial is not a tea party,” the Court cannot be seen as endorsing this behaviour anywhere in their decision.

Although incivility is more than just “hurt feelings,” all of these actions are employed as a deliberate tactic to disrupt proceedings and render opposing counsel ineffective (para 183).

This incivility rarely occurs in court – and hardly ever occurs before a judge – but it is just as damaging to the public confidence and the administration of justice, and should be just as reviewable by a law society in conduct hearings. Justice Côté’s dissent, and much of the analysis by the majority’s analysis (paras 102-110, 148-154), are completely irrelevant to the majority of incivility that occurs outside of the courtroom. Occasionally, these comments can be found on the record, for example, in a transcript for an examination for discovery, and form an excellent evidentiary basis for review.

Indeed, the best way to address questions about the application and interpretation of a test on incivility is more robust case law and decisions on the subject. In which case the Court’s decision is a pyrrhic one for Groia, and to those that would endorse incivility in the name of resolute advocacy (para 76).

The fact that three of the Supreme Court judges applied the same test as the majority and came to a different conclusion about the reasonableness of the Appeal Panel’s decision illustrates that incivility will continue to be a complicated and pressing matter for the profession to explore. Their concern that subjective legal beliefs of a lawyer as a reasonable basis for misconduct will provide immunity from sanction, raised at para 198 by this dissent, will have to be tested by future decisions.

Lest this be interpreted as a call for unnecessary complaints against counsel, consider the majority of the Court’s following statements,

[119] …the Appeal Panel’s reasonable basis standard allows for a proportionate balancing between expressive freedom and the Law Society’s statutory mandate. Allegations impugning opposing counsel’s integrity that lack a reasonable basis lie far from the core values underpinning lawyers’ expressive rights. Reasonable criticism advances the interests of justice by holding other players accountable. Unreasonable attacks do quite the opposite. As I have explained at paras. 63-67, such attacks frustrate the interests of justice by undermining trial fairness and public confidence in the justice system. A decision finding a lawyer guilty of professional misconduct for launching unreasonable allegations would therefore be likely to represent a proportionate balancing of the Law Society’s mandate and the lawyer’s expressive rights.

[120] In contrast, sanctioning a lawyer for good faith, reasonably based allegations that are grounded in legal error does not reflect a proportionate balancing. Advancing good faith, reasonable allegations — even those based on legal error — helps maintain the integrity of the justice system by holding other participants accountable. Well-founded arguments exposing misconduct on the part of opposing counsel thus lie close to the core of the s. 2 (b) values underpinning a lawyer’s expressive freedom. Discouraging lawyers from bringing forward such allegations does nothing to further the Law Society’s statutory mandate of advancing the cause of justice and the rule of law. If anything, silencing lawyers in this manner undercuts the rule of law and the cause of justice by making it more likely that misconduct will go unchecked.

[emphasis added]

Accountability is still what is being called for in Groia, and it is the law society that is still primarily responsible for ensuring this accountability.

On April 25, 2018, Lee Akazaki received the OBA’s Joel Kuchar Award for Professionalism and Civility. At this event, Akazaki addressed the audience and said there is no reason why a trial could not be a tea party. Incivility is never called for, and is always a distraction from the issues at hand.

I agree with this sentiment, and see the questionable conduct by some counsel as compensation for weakness in their legal arguments. Resorting to alternative tactics is one of desperation, and one that should be met with resoluteness and insistence on a focus of the relevant issues.

The Court of Appeal at para 138 indicated that this adage, “a hard fought trial is not a tea party,” is often misused. The decision in Groia ensures that it will be misused further.

Careful review of the Supreme Court’s decision, by those with a superior ability to analyze it, will easily understand that it still does not license abusive and unprofessional behaviour towards opposing counsel.

Lee Akazaki (April 25, 2018): “Why can’t a trial be a tea party?” (Photo Credit: Joyce Zhang)