Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m S E P T E M B E R 2 0 1 7 27 he fraud trial of John Bernard Felderhof began in a down- town Toronto courtroom in the fall of 2000. Because Felder- hof had been vice president of exploration at Calgary-based Bre-X Minerals, perpetrator of one of the greatest frauds in Canadian history, the trial consumed people across the country and around the world. Bre-X had risen from a penny stock to a $6-billion behemoth on the back of its claim to have discovered one of the world's largest gold finds in the jungles of Borneo, Indonesia. When word got out that those claims were fake — samples had been "salted" with gold from elsewhere — the stock cratered. Investors lost hundreds of millions of dollars, and a fountain of investigations and lawsuits followed in both Canada and the U.S. One criminal prosecution, launched by the Ontario Securities Commission in the Ontario Court of Justice, was of Felderhof on charges of insider trading and the release of misleading press releases. The OSC also alleged that Fel- derhof sold $84-million worth of stock while having information not disclosed to the investing public. The sordid, complicated and fascinating story of Bre-X and Fel- derhof 's culpability in the corporate deceit has been written about extensively, and it was recently given the Hollywood treatment in the movie "Gold," starring Matthew McConaughey. But this story isn't about Bre-X. It isn't even about Felderhof. This story is about an almost equally compelling offshoot of the Felderhof trial. It's about a prosecu- tion launched by the Law Society of Upper Canada two years after Felderhof 's case ended in 2007. That fall, the LSUC began a proceeding against Felderhof 's defence lawyer, Joe Groia, alleging that he'd been guilty of professional miscon- duct in his defence of Felderhof by, among other things, relentlessly attacking OSC prosecutors, both professionally and personally. After a hearing, a disciplinary panel of the LSUC found that Groia was guilty of incivility and suspended his licence to practise for two months. It also ordered him to pay costs of $247,000. Those penalties were reduced on appeal to one month and $200,000, but through that appeal and two others, all the way to the Ontario Court of Appeal, the courts have upheld Groia's guilt of professional misconduct. The courts, and the LSUC's panels before them, wrestled with no fewer than three important legal issues in reaching their decisions. The first is the law society's jurisdiction to assess a lawyer's in-court behav- iour, particularly when the presiding judge himself seemed to have no concern with it. The second involves the tension between the legal pro- fession's broadly accepted duty of civility and the criminal defence bar's passionately guarded duty of zealous advocacy, in which the risk of an accused's imprisonment trumps any gentile notions of civility. Finally, Groia argues that enforced civility has infringed his freedom of speech. But there's more to Joseph Peter Paul Groia v. Law Society of Upper Canada than legal determinations. The case raises several practical considerations with which the legal profession is wrestling. The first involves the use of court resources. The Supreme Court of Canada's decision in R. v. Jordan last summer, which dealt with an accused's right to a trial within a reasonable amount of time, highlighted how justice systems across the country are under strain. Drawn-out proceedings in which every point is fought has many commentators blaming, at least in T LSUC

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