Friday, September 29, 2017

Does The Majority Ruling in Groia v. L.S.U.C.(ONCA) Rely on a Flawed Premise ?

   In Groia   v.  The Law Society of Upper Canada the majority reasons dismissing his appeal contain what this writer believes to be a flawed legal premise which arguably impacted their analysis and outcome of the legal question before them.  That flawed legal premise is found in the first paragraph of the majority's reasons.

The Ruling:

[1]   For almost 220 years, the Law Society of Upper Canada has governed the legal profession in the public interest under statutory authority granted to it by the legislature of Ontario.


   The Law Society was created in 1797 to regulate the legal profession in the British colony of Upper Canada. Ontario was founded on July 1st, 1867.

The Ruling continued:

[1]   ....For close to a century, in the exercise of its statutory mandate, the Law Society has formed a body of rules governing the professional conduct and ethical obligations of lawyers, both inside and outside the courtroom.  Lawyers who fail to to meet the standards of practice established by these rules are subject to the Law Society's complaints and disciple processes.  In Ontario, as elsewhere in Canada, it is a privilege to practice law, not a right.


   The term "it is a privilege to practice law, not a right" is the flawed premise which permeates the majority's ruling - in this writer's opinion.  What does this term mean ?  The writer's asking of this question ought to alert readers to the inherent ambiguity and hence arbitrariness in the term. In this writer's opinion this term is one which is well grounded in our history as a nation and is arguably more of a political term than a legal principle.  The most obvious reference was when our federal government passed laws restricting immigration on what are today widely accepted as irrelevant and discriminatory grounds. Indeed, the very Law Society which is the subject of the appeal followed this sentiment in restricting access to African-Canadians and women based on this principle - namely - "it is a privilege to practice law, not a right."

   Accordingly, in this writer's opinion - the majority decision by the Court of Appeal for Ontario appears to have answered the wrong legal question.  The majority appears to have focused their attention on whether the governing body acted within its jurisdiction without properly considering that the court had in fact addressed the incivility and it was in fact spent. In this context the reference to "it is a privilege to practice law, not a right" makes perfect sense.  Justice Brown got it right when he wrote:

[255]   Our disagreement, therefore lies not in the continued importance of civility to the health of Ontario's legal system.  Our disagreement lies in how to determine when a barrister's in-court conduct amounts to professional misconduct because it is uncivil.

Mr. Groia Complied with
The Court's Directions:

   Indeed, a significant point raised by Justice Brown in his dissent is that the courts addressed the issue in the proceedings and Mr. Groia complied.  He wrote:

[249]   The senior courts to which the prosecutors complained were not silent about Mr. Groia's conduct.  Quite to the contrary.  In no uncertain terms they expressed their very strong displeasure. In the language of earlier times, they administered a public shaming to Mr. Groia. They told Mr. Groia to cut it out and smarten up.  He listened, and he did.  Phase two continued without incident

About the author:

E.J. Guiste is a trial and appeal law based in Toronto, Ontario.  He has an unwavering passion for equality and The Rule of Law.  He is the author of "A Catholic Lawyer's Prayer" - which can be found on this blog.  This prayer articulates the inherent fear and danger which lawyers dedicated to the proper defence of  their clients are exposed to as part of their duty as a lawyers.  Read it here !

NOTE:  This piece is written for the sole purpose of shedding light on an issue of public importance.  The views expressed here are the views of the writer on the subject and should by no means be interpreted as a form of disrespect to any institution or person involved in the issue.