The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Joe Groia’s incivility dispute heads to the Supreme Court

February 6 2017 6 February 2017

 

It’s somewhat fitting that it is in these polarized and vitriolic times, where levels of incivility and nastiness seem to have become commonplace – in the media, in politics, on social platforms, in the workplace – that the Supreme Court of Canada has granted leave to hear the appeal by Toronto lawyer Joe Groia. 

As a quick recap, in 2011, the Law Society of Upper Canada found that Groia engaged repeatedly in uncivil conduct in the defense of his client, John Felderhof, the chief geologist and central figure of the Bre-X Minerals scandal. At trial, Felderhof was acquitted of all charges. Though the trial judge had never complained to the Law Society about Mr. Groia’s conduct, a disciplinary panel nevertheless found that Groia’s violated professional conduct rules by being rude and lacking respect for the court. Groia saw his licence briefly suspended.

Sean Robichaud gives some background, and frames the debate, arguing that advocacy is about “justice, not civility:

Every Canadian lawyer has their own views on how this decision “should end, and what it means to zealously defend our clients.

For me, the decisions and of the Law Society, and the Court decisions that follow it missed the mark of what it means, and more importantly, what is required of an advocate.

An advocate tries to be civil, but we live in a world where at times, civility must yield to issues that are far more important.

Civility is a nebulous concept. It is one easily misaligned with improper dissent or disruption even if that concordance is derivative from the pursuit of justice.

We try our best as advocates to rise above, to be civil, but at times the issue is so controversial or opposed that the mere objection to it can be characterized as uncivil itself.

In a paper published on his firm’s website, Groia and his co-authors have this to say about the civility movement in law:

All we will attempt to show in this paper is that the civility movement not only adversely affects the public interest and hurts the legal profession as a whole, but also that in other areas of public life such as business or politics, the undue promotion of civility actually hurts rather than helps the pursuit of excellence. This is not to say that civility is always bad and incivility is always good. Rather, this paper argues against the harsh absolutes now posed by the civility debate. In our view civility is not always desirable, nor is incivility always undesirable.

Here’s Marie Henein, in 2012, on the role of civility in a lawyer’s work:

It has absolutely nothing to do with making us a kinder, gentler nation of lawyers. Nor does it have anything to do with convincing the public that we really are nice and polite. It is about this one essential fact: civility is integral to effective advocacy.

Your job as an advocate is to convey your message. If the court is not getting your point, it is because you have not found the right way to clearly present it. Your job, always, is to figure out how to be heard on behalf of your client. And it is hard to be heard above the din of incivility.

Civility as a part of effective advocacy is important as it grounds your credibility.

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