Canadian Lawyer

30 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 a constellation of obligations that together make up the overarching duty of profes- sionalism that conditions the privilege of practising law in Ontario." Specifically, professionalism "includes the duty of civil- ity, and an advocate's duty to his or her client does not permit the advocate to act unprofessionally or absolve him of his duty to the Court and to other lawyers." The Court of Appeal makes clear that not every single lapse of judgment or disparaging comment about opposing counsel will or ought to lead to disci- plinary action. "The Law Society disci- plinary panels were concerned here with an advocate's alleged pattern of making unfounded, personalized attacks on the integrity of opposing counsel and baseless allegations of prosecutorial misconduct," wrote the court. "The Appeal Panel's test was specifically designed to address the serious and repetitive nature and manner of expression of these allegations." Regardless, Groia says a ruling against him will still have a chilling effect on the defence bar. "No matter what a regula- tor says and no matter how they say it, the reality is if lawyers are going to be prosecuted for submissions they make to a judge, there's a problem and it damages the profession as a whole and the way our clients think of us as an advocate." A third issue for the SCC to determine will be whether Felderhof 's constitutional right to make full answer and defence to the OSC charges was breached. "Deny- ing a lawyer's right to free expression on behalf of a client in a court of law in favour of a vague definition of civility and its application after the fact fetters and chills the lawyer's ability to engage in vigorous advocacy," Groia argues in his factum, "in turn damaging the public interest, as well as infringing [on] the ability of an accused or client to make full answer and defence in a judicial proceeding." The law society argues that lawyers do not enjoy an absolute freedom of speech and that Groia's personal attacks and alle- gations of prosecutorial misconduct were of low value and deserve little protection as free speech. "Simply because words are spoken by a lawyer does not necessarily mean they are more important or worthy of greater constitutional protection," says the LSUC. On this point, the Court of Appeal again sided with the law society, quot- ing favourably from the appeal panel's decision, in which it wrote that "zealous advocacy did not require Mr. Groia to make unfounded allegations of prosecu- torial misconduct. Zealous advocacy did not dictate that Mr. Groia improperly impugn the integrity of his opponents. Zealous advocacy did not require Mr. Groia to frequently resort to invective in describing opponents who were trying to do their jobs." The SCC's decision in this case will have repercussions well beyond the legal principles involved. The case is being decided in an era of the Canadian judicial system that is being defined by the SCC's Jordan decision, where the court put a ceiling of 18 months between charges and trial in a provincial court and of 30 months in other cases. Courts across the country have complained that a lack of resources — available judges, Crowns and court time — is making it difficult to meet © 2017 Thomson Reuters Canada Limited 00246UU-89008-NP NEW Enhanced Texts and Annotations Library for Authored Commentary The enhanced Texts and Annotations Library on WestlawNext Canada allows you to intuitively browse and search texts and annotations, as well as the Thomson Reuters Canada collection of eLooseleafs on ProView. All this content is integrated and displayed on one page. You can narrow your search using multiple filters to search by eLooseleaf titles only, texts and annotations on WestlawNext Canada only, or both. The enhanced page also allows you to access your favourite publications from a Favourite Publications carousel at the top of the page. For more information, visit westlawnextcanada.com/text-and-annotations Find relevant analytical sources faster by using the filters to quickly narrow the list of publications Browse through a comprehensive list of all publications Easily access your favourite Secondary Sources and add new ones

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