Canadian Lawyer

OP I N ION It is hard not to have sympathy for Douglas. But it is damaging to the judiciary's gravitas to have this sad and sordid tale endlessly told and retold by the media. The inquiry itself has become a circus . . . practice." It said, "a pattern of conduct that includes persistent attacks and sarcasm directed at opposing counsel can form the basis of incivility. panel rejected the argument that a duty of civility can compromise a lawyer's duty to defend a client vigorously. It found Groia to be uncivil, a vague con- cept to say the least. Unless his appeal succeeds, Groia will be disciplined at a later hearing. Groia was certainly aggressive and " The blunt in the Felderhof litigation — sar- castic even. This was particularly so when he was dealing with the lawyer for the Ontario Securities Commission (not a paragon of civility himself). But the LSUC hearing panel's bizarre con- demnation of Groia as "uncivil" is remi- niscent of Monty Python reporting that mythical London gangster Doug Piranha was feared because of his merciless use of "sarcasm, dramatic irony, metaphor, bathos, puns, parody, litotes, and satire. What terrible things did Groia say? Well, for example, he used the word "govern- ment" to refer to the Ontario Securities Commission. Goodness me. Groia's representation of Felderhof " to the judicial system than anything he is supposed to have done. As his counsel said in closing submissions to the LSUC hearing panel: "This prosecution . . . attacks the independence of the bar and freedom of expression, as counsel are now looking over their shoulders and censoring their vigorous representation of their clients, lest they face the type of ruinous prosecution the LSUC has visited on Mr. Groia." What about Associate Chief Justice Lori Douglas? If you haven't heard about the ongoing inquiry into her behaviour by the Canadian Judicial Council, you must be deep in the wilderness, far from newspapers, free of the Internet. Lucky you. The principal allegations against is clear that the appointments commit- tee knew about and the issue was flagged for consider- ation by then-minister of Justice Irwin Cotler). As for public confidence in the justice system, Douglas says "right thinking people do not conclude that a woman who has been victimized by her husband is to blame for her husband's conduct and, accordingly, lacks integ- rity or is not suitable to sit as a judge. It is hard not to have sympathy for the Internet pictures, " Douglas. But it is damaging to the judi- ciary's gravitas to have this sad and sor- did tale endlessly told and retold by the media. The inquiry itself has become a circus, with Douglas' may not have been advocacy's finest hour although, don't forget, his cli- ent was acquitted, job No. 1 for a defence lawyer. His behaviour may have dragged out proceedings and made them unpleasant for all participants. For all I know, Groia may not even be a very nice person (I've never met him). But for law society officials to spend so many resources and so much time over this matter makes them — in my opinion — look silly, even mysteriously vindictive. Aren't there more important issues facing the legal profession? Most important of all, the LSUC's pursuit of Groia is far more damaging Douglas are that in 2003 she and her lawyer husband sexually harassed one of her husband's clients, including post- ing (by the husband) of graphic sexual photos on a web site, and when she sub- sequently applied for a judicial appoint- ment she answered "no" to the question "Is there anything in your past and present which could reflect negatively on yourself or the judiciary, and which should be disclosed?" A further allega- tion is that the continued availability of the photos on the Internet is "inher- ently contrary to the image and concept of integrity of the judiciary, such that the confidence of individuals appear- ing before the judge, or the public in its justice system, could be undermined. Douglas claims when the alleged " harassment took place she had no knowledge of her husband's "unimagi- nable betrayal" and "mad and undis- closed fantasy" and that any wrongdoing was entirely his. She denies concealing what had happened when she applied for a judicial appointment in 2005. (It application with the Federal court to quash the inquiry due to "a reasonable apprehension of bias" and the inquiry's "independent counsel" claiming the inquiry has exceeded its lawyer filing an and shortly thereafter quitting. The CJC should have sought to settle the mat- ter behind the scenes, transparency be damned. And it is difficult to imagine the Douglas story eventually being put away and forgotten, with her quietly resuming her judicial duties. She should have recognized early on that the story itself, whatever her actual conduct, was "inherently contrary to the image and concept of integrity of the judiciary" and should have resigned. That would have restored some faith in her personal judgment. Two crazy proceedings; both damag- jurisdiction ing to the justice system. Save us from the disciplinarians. Philip Slayton's latest book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life, is now available in paperback. Follow him on Twitter @philipslayton. www.CANADIAN Lawyermag.com OCTO BER 2012 17

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