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 31 those rules, and a number of charges have been stayed or dismissed on the basis of Jordan. That has drawn the ire of the vic- tims and the broader public. While delay was not a specific concern in Groia, the type of fractious relation- ship between opposing counsel that was seen in the case has been identified as one factor contributing to delays. "When lawyers aren't getting along, when they don't like each other, when they make it personal, they fight over everything and waste court time," says Robin Flumerfelt, a vice president with the Ontario Crown Attorney's Office. "There's a responsibility in the profession now to realize that there's a limited amount of court time and that we have to get our work done during that period of time and have to co-operate to some extent." Beyond the consumption of time, Flumerfelt questions whether Groia's tac- tics and conduct in his defence of Fel- derhof are effective advocacy. He brings out a well-worn analogy about defence lawyers that circulates among Crowns: If the Crown's case is like a car, the unneces- sarily aggressive defence lawyer takes a baseball bat and smashes in the windows and doors and smashes out the headlights, but when they're done the Crown gets in it, turns the key and the car starts. "The really good lawyers just reach under and unscrew the oil pan and the car won't start," he says. Veteran defence lawyer Liam O'Connor agrees with the analogy's basic premise. "You catch more flies with honey than vinegar," he says. "In the last 20 years, I can think of three times when I raised my voice inappropriately with Crown counsel and I ended up having to eat my words and apologize." He says he's seen the abrasive style over the years and doesn't think it works. "Some people think it impresses clients," he says. "I don't think so. My adversaries are the witnesses, not the Crown attorneys or the court." But there are bigger fish in play than good advocacy, says Adam Dodek, a pro- fessor at the University of Ottawa and a founding member of the Canadian Asso- ciation for Legal Ethics. He has followed, and written about, the Groia case for years. "When Canadian legal history is writ- ten, it may show that the profession was distracted by civility and failed to devote sufficient interest to access to justice," he wrote in 2011. He argues that the legal system is accessible only to large cor- porations and desperate people charged with serious criminal offences. That, if not addressed, will lead to an existential crisis for law societies — the end of self- regulation. Dodek also argues that notions of civility have long been used to exclude outsider groups, such as women and minorities, from the profession. He cites his colleague Constance Backhouse, a legal historian and LSUC bencher, who wrote about Bertha Wilson, the first woman to serve on the SCC: "Profes- sional norms of civility and collegiality were used to demarcate, bolster and pro- tect the masculine judicial circle. These ethical norms, so touted in professional rhetoric, were not used to extend col- legial community to the first woman as an equal, but to isolate and exclude her." Dodek concludes that the prosecution of Groia on the basis of incivility calls to mind notions of manners dating back to the time of Jane Austen. "The halls of legal offices in Canada are replete with tales of rudeness and incivility on the part of elite lawyers," he wrote, "but somehow these lawyers do not become the subject of law society discipline process." In an email, Dodek concluded that the LSUC's pros- ecution of Groia is a regulatory misstep. "It has been a colossal waste of time and resources for the LSUC, which would've been much better spent elsewhere protect- ing and promoting the public interest." Joe Groia, the man at the centre of the maelstrom, isn't particularly proud of his role in phase one of the Felderhof trial. But he won't renounce the idea of using similar tactics in the future should the need arise. "I will try and use dif- ferent words, but I hope I will be every bit as zealous in my defence because I believe that's what clients deserve," he says. He points out that phase two of the trial, during which different pros- ecutors argued the OSC's case, went relatively smoothly. "I was dealing with a prosecutor who acted in the finest tradition of prosecutors and I did what a good defence lawyer does, which is to make reasonable accommodations when I could and we fought about what we had to fight about." The Bre-X saga came to a head in March of 1997 when the company's Filipi- no geologist, Michael de Guzman, jumped — some say he was pushed — from a heli- copter to his death in the Borneo jungle. The Bre-X story unravelled from there, with investors ultimately out an estimated $6 billion. After a 160-day trial, Felderhof was acquitted of any wrongdoing. Justice Hryn found that "tampering at Bre-X was unprecedented" but that there were no red flags that should have been obvious to Felderhof. "I am satisfied on a balance of probabilities that Felderhof has proven that he took all reasonable care." Groia won one of Canada's most- watched trials with an impressive and controversial style. But the waves rippling out from that victory continue to be felt, both by former investors and by the legal profession. The SCC is set to hear Groia's appeal on Nov. 6. "DENYING 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."

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