Canadian Lawyer

28 S E P T E M B E R 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m part, protracted battles between Crown and defence counsel for consuming pre- cious time. Secondly, there is a debate about whether zealous advocacy and the duty of civility are mutually exclusive or whether they are two components of good lawyering. Finally, many com- mentators, particularly from academia, allege that the concept of civility itself has often been used to exclude outsider groups, particularly women and minori- ties, from the profession. They also won- der if the legal profession isn't focusing its efforts on civility to the detriment of the larger issue of access to justice. Felderhof was the only person ever charged in relation to the Bre-X scandal. To the disgust of thousands of investors, the case ended with his acquittal and he now lives a quiet life in the Philippines. In contrast, the Groia case continues to consume endless cartridges of ink — and court time. It will have its final hearing, before the Supreme Court of Canada, this fall. The Felderhof trial headed south soon after it began, before Justice Peter Hryn, in the fall of 2000. "To say that the OSC prosecution against Mr. Fel- derhof was complex, protracted and exceptionally acrimonious significantly understates the time-consuming, stress- ful and confrontational climate that rapidly infected the proceeding," wrote Justice E. A. Cronk, for the majority of the Court of Appeal in its June 2016 decision on the merits of the Groia pros- ecution. The first witness, former Bre-X executive vice president Rolando Fran- cisco, didn't begin testifying until late November, more than six weeks after the trial began. Those first weeks were taken up with four weeks of preliminary motions, eight days of introduction from the OSC and three days of Groia's open- ing statement. There was an extended Stinchcombe application alleging that the Crown was not meeting its disclosure obligations and repeated disputes over the admissibility of documents. By the time Francisco took the stand, tensions between opposing counsel were obvious. Groia repeatedly accused the prosecution of misconduct and incom- petence. The prosecution, and various members of the judiciary involved in the hearings since, described Groia's conduct as improper, appallingly unre- strained, unprofessional, inappropriate and extreme. After 70 days of trial, the OSC applied for judicial review in the Superior Court, arguing that Groia had repeatedly engaged in uncivil conduct in violation of the LSUC's Rules of Professional Con- duct and that Hryn, by failing to control this unacceptable conduct, had lost juris- diction. This application was dismissed, in the Superior Court and then the Court of Appeal, and the matter was remitted to Hryn. Those first 70 days, known in Groia v. LSUC lore as phase one, form the basis of the case headed to the SCC. In his factum to the SCC, Groia makes the case that the law society has no jurisdiction to reprimand him for his in-court behaviour, particularly when he was not disciplined at the time by the presiding judge. He says the proceed- ings started by the LSUC damage the independence of our judicial system and harm the public interest. "If the decisions below stand," he writes, "Canadians may regrettably conclude that it is the state — in this case, through its statutory agent the Law Society of Upper Canada — and not the trial judge [that] has the final say on how a criminal or civil trial is conducted." The LSUC, naturally, sees things dif- ferently and argues that this case is not about the independence of the judi- ciary. It says that, while trial judges have authority to control the courtroom, responsibility for the conduct of trial lawyers is not theirs alone and the law society has a distinct role to play. Both sides refer to the recent SCC decision of R. v. Jodoin, which confirmed that law societies have the jurisdiction and the duty to regulate the profession, and a judge's ability to discharge her task of ensuring a fair process is not undermined by a law society's exercise of its parallel jurisdiction to discipline a lawyer. Groia argues that Jodoin was an example of a lawyer who had been criticized by the court and ordered to Joe Groia at his disciplinary hearing at Osgoode Hall in Toronto on Aug. 2, 2011. PETER POWER/THE GLOBE AND MAIL

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