In November 2017, CCLA intervened before the Supreme Court of Canada in an important case concerning freedom of expression and criminal defence – Groia v. Law Society of Upper Canada. The case involves the professional discipline of a lawyer and considers when lawyers can be disciplined for statements made in court while defending their clients, particularly in highly contested criminal matters.
Joseph Groia, the lawyer at the centre of the case, has been disciplined for professional misconduct on the basis of ‘incivility’. The Law Society of Upper Canada, which regulates lawyers in the province, has argued that statements and arguments made by Mr. Groia when defending a client against a serious securities prosecution, crossed the line from zealous advocacy to professional misconduct. CCLA intervened in this case before the Law Society’s Appeal Panel, Ontario’s Divisional Court, the Ontario Court of Appeal and finally before the Supreme Court of Canada.
CCLA has never questioned that lawyers have professional obligations. However, we are concerned that a broad reading of the Rules of Professional Conduct that require civility could have a chilling effect on lawyers, who must defend their clients’ constitutional rights, and who are often looked to for candid commentary and criticism of the justice system. CCLA argued that the threshold for disciplining a lawyer for incivility based on in-court statements should be very high, and that a penalty should be imposed on a lawyer only in the clearest of cases, where the alleged incivility seriously undermines the administration of justice or has caused or is reasonably likely to cause a miscarriage of justice. We also argued that any after-the-fact review should give due regard to how the conduct was addressed (or not addressed) by the presiding judge at the time of the expression. The Supreme Court has reserved its decision in the case.