Saturday, June 25, 2016

Greenspan: "The Role of the Defence is Making Sure Democracy Works" - An Examination of Groia's Prosecution

     Law is a challenging area for the media to report upon.  Many in the media lack the knowledge of law necessary to report critically and intelligently on legal issues. In making this statement it is not my intention to unfairly criticize the media but merely to make what I see as a relevant observation.  As a direct result of this limitation, the reporting of legal issues by our media is focused on outcome first and foremost - guilty - not guilty - incivil - rude - profane etc.

     The media's coverage of Mr. Groia's prosecution for incivility has - like many other legal issues covered by the media- understandably been more results oriented and has fallen short of delivering the underlying facts and issues to the interested parties - lawyers and the people they serve.  For example, few in the public are aware of the following ten salient facts in the Groia case:

1.   The Law Society of Upper Canada(LSUC) began its "investigation " of Mr. Groia in February 2003 on its own initiative after Investigation Counsel read an article in the National Post concerning the state of the Felderhof trial.

2.   The LSUC called no witnesses before the Hearing Panel. It relied exclusively on the reasons of Justices Campbell and Rosenberg and the Ontario Securities Commission's submissions.

3.   Joe Groia testified in his own defence along with Nicholas Richter, Kevin Richards, Mr. Felderhof, Brian Greenspan, Professor Alice Wooley, Stanley Fisher and Peter Hoy.

4.   The Ontario Securities Commission unsuccessfully raised issues of Mr. Groia's conduct before the trial judge.

5.  The Ontario Securities Commission unsuccessfully brought a judicial review application claiming that the trial judge had lost jurisdiction, on amongst other grounds by failing to restrain Mr. Groia from "making unsubstantiated allegations" against the OSC prosecution.

6.   The Divisional Court dismissed the OSC's judicial review application.

7.   The OSC appealed unsuccessfully to the Court of Appeal.

8.   The trial continued until its conclusion before the trial judge and Mr. Groia's client was fully acquitted.

9.   The trial judge censured OSC counsel for their refusal to abide by his ruling.

10.  Counsel for the OSC apologized to the court.

Excerpt from Mr. Groia's Factum 
at Divisional Court: 

[54]     Justice Campbell dismissed the OSC application.  He found that Justice Justice Hryn had not lost jurisdiction and made the following comments:

-    The trial was hard fought with a degree of excess on each side, with no side having a monopoly over incivility or rhetorical excess.  That animosity spilled over into the judicial review proceedings, with Mr. Code for the OSC characterizing Mr. Groia's arguments as a "bald-faced lie" and comparing him to a "bomb-thrower" four months after 9-11.

-    Hryn J. took the daily temperature of the trial and had a wide discretion to determine how to deal with the conduct of counsel in the course of making their submissions.

- The dividing line between colourful language and abusive language is not always clear and it was not the task of the court to pick over every word of Mr. Groia's submissions to see if they might be considered offensive.

- Mr. Groia was entitled to make allegations of abuse of process and professional misconduct.  Justice Hryn did not lose jurisdiction and those allegations did not affect the fairness of the trial.

- Nothing in Mr. Groia's submissions could have reasonably prevented Mr. Naster from discharging his prosecutorial duties in a professional manner.

Excerpts of Brian Greenspan's

"The way I perceive it is Mr. Groia was making repeated accusations, and it was to some extent finding a receptive judge who was increasingly of the view that the Crown was misconducting itself. I think that is the flavor of the trial.....I think that is the dilema.  I may not have described it exactly the way it unfolded her, but that's the tension.  It's the tension between your obligation to your client."

"Quite frankly, without being too romantic about it, many of us think the the role of defence is making sure democracy works.  So you look at it and say, "If I'm there and I see a judge letting me do something, unless its getting really difficult, I think that you might push the envelope as far as you possibly can."  (Evidence of Mr. Greenspan August 18, 2011)

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