Policing Thoughtcrime: The Role of Law Societies?

I’ve been thinking a lot recently about the role Law Societies play in regulating the opinions expressed by lawyers. Lawyers are required to be “respectful” of tribunals and courts, yet they’re also required to be critical of injustice when they see it. How does one reconcile these sometimes-conflicting duties, and who decides what behaviour is acceptable?

We live in a time of societal reckoning. Given the pandemic and some of the issues that have been front and centre, it is a time when many are challenging fundamental assumptions about how (and by whom) law is created, enforced and imposed. Although respect for our legal systems is required, fundamental rethinking of our legal systems themselves may require some creative thinking – and may occasionally show less respect than we’re accustomed to for the systems we have in place. People are beginning to challenge systemic racism and biases in our justice systems. Is that suggestive of respect for our legal system? I’d think not.

I’ve been openly critical of courts and our justice system – usually in specific instances – on my blog, for instance. I asked on Twitter (back in April) what people think of this, given that I had noticed several lawyers on Twitter deleting comments they had made that were slightly critical of the Supreme Court. One lawyer privately noted that he liked the points that I made. Another lawyer (bravely) publicly commented that “The litany of wrongful convictions in this country have exposed a series of systemic issues in our justice system. Robust and reasoned criticism should be encouraged” – which is perhaps more aspirational than practical. The very fact that lawyers are constantly deleting their comments is precisely indicative of the concern I am raising – if lawyers are terrified of criticizing courts, what kind of justice system is this altogether? An Orwellian version of 1950s McCarthyism? Other present-day countries for whom freedom of speech is an absolute joke?

It brings to mind the saga of Joe Groia – the lawyer who was harassed by the Law Society of Ontario for decades, finally to be vindicated by the Supreme Court some 4 years ago. He spoke at my school a while back, and he was easily the most inspiring figure I heard there – and I heard more than one Supreme Court justice speak. More on him below.

Judges

A major problem with our justice system is its aura of invincibility. Judges are practically equated with deities. This is not helpful to anyone, yet it permeates the culture in legal circles. I think treating judges as human beings would go a long way toward leveling the playing field and making our justice system more equitable, accessible and just.

For example, judges are “presumed to be impartial” and courts are often very resistant to the idea that a judge made a mistake – or worse, appeared to be biased against one side or another. I actually had a judge practically scream at me (while denying a mistrial application) about how fair all judges on the bench were – prior to my successful appeal of his trial decisions – primarily on the ground of bias.

Why are we so resistant to the idea that judges are human beings, and often simply do not bring their best selves to work? Lawyers – including very senior ones – are constantly disciplined for various misdemeanours and accounting irregularities, etc. Why do we assume that, once someone is appointed to the bench – particularly given that many appointments are political – they turn into a saint who can do no evil? Who does this fantasy serve? Certainly not the public nor the “administration of justice.” See Richard Posner’s excellent book for more on the humanity of judges.

Note the excellent decision of R. v. Gashikanyi, 2017 ABCA 194 – cited approvingly by the Supreme Court in R. v. Parranto, 2021 SCC 46 at para. 139 – in which Berger JA notes that judges are “no different than butchers, bakers, and candlestick makers” (para. 72). In para. 74, he notes – quite correctly, I’ll note – that “a disproportionate opportunity” is afforded to “certain judges to shape the jurisprudence of the Court.” Rowbotham JA strongly disagreed – ironically noting the “very high” presumption of judicial impartiality, “not easily displaced” (para. 116).

In R. v. Sitladeen, 2021 ONCA 303, Miller JA criticizes scholarly articles as “legal advocacy” and a “backdoor admission of expert social science evidence” (paras. 101, 99). If this is true, it is concerning, given that the majority of Supreme Court of Canada decisions rely on “legal advocacy” – including recent, extensive reliance on Professor Craig’s book “Putting Trials on Trial” – which I critically review here.

In R v Stephan, 2021 ABCA 82, the ABCA found that the trial judge’s behaviour gave rise to a reasonable apprehension of bias (para. 148). The Crown had delicately suggested not that the judge was “actually biased, only that the cumulative effect of some of his comments give rise to that perception” (para. 111). In that case, the trial judge had commented negatively about the accent and language skills of a proposed Crown expert. Based on my understanding of the facts of that case, I disagree with the Court of Appeal’s finding that the judge’s words would lead to a reasonable apprehension of bias (or actual bias), and the Crown subsequently stayed the proceedings anyway. It also appears that the expert was an absolute fraudster. In any event, would it have been a breach of Crown ethical duties had they alleged that the judge was actually biased? I would hope not – but again, it’s difficult to reconcile with the duty to be respectful of the court.

In R. v. Brown, 2003 CanLII 52142 (ON CA), the Ontario Court of Appeal dismissed a Crown appeal of a summary conviction appeal that had overturned a conviction where allegations of racial profiling against the arresting officer were found to be improper – at the trial level. Morden JA found that “open indication of distaste or, to use a synonym, aversion, during the presentation of a case is utterly inconsistent with the duty of a judge to listen dispassionately with an open mind” (para. 103).

Another judge who was publicly criticized is Judge Camp.[1] He was famously disgraced publicly (perhaps “tarred and feathered” would be a more accurate account) for making statements about a complainant in a sexual assault trial that were said to be demeaning. I think he did nothing wrong, and it’s a shame he was fired. What’s worse is so many judges do far worse than what he was accused of – usually towards presumptively innocent accused persons (for example, disbelieving them without good reason, presuming them to be guilty, etc.). I’ve never heard of anyone being disciplined for that – especially if they’re less overt about their views (“I mean, mistakes happen, right? That’s why we have appeal courts”, etc. etc.). Even in disturbing cases of wrongful convictions rarely being overturned (for example, R. v. Ururyar, 2017 ONSC 4428 – the trial judge’s reasons were simply “incomprehensible” and 4 of 6 grounds of appeal from conviction were valid – paras. 57, 62, 64, 66), I don’t recall a stitch of public outcry for sanctions against the judge – why is that? It’s a good thing that judge didn’t say anything even slightly distasteful to a lying complainant, as Judge Camp may have – otherwise, he’d be unceremoniously dumped, too. See also the R. v. Howe, 2015 NSCA 84 fiasco I discuss (alongside Ururyar) here – note the Ururyar judge’s recent virtue signaling post here – an apology to the public and to the accused would have been far more appropriate. See also here and here.

In R. v. Ibrahim, 2019 ONCA 631 (Star), the ONCA was highly critical of the trial judge’s (ON Superior Court Justice Robert Clark) “injudicious” (para. 95) approach, criticized his criticism of the ethics of counsel (finding them to be “unfair” and unfounded” – at para. 87), and criticized his refusal to allow counsel to rely on their observations at trial (para. 89). The appeal court was also quite concerned about allegations of injudicious judicial “deportment” (yelling, etc.) alleged by the appellant, not deciding whether it gave rise to a reasonable apprehension of bias (para. 109). In the conclusion, the appeal was granted on other grounds (para. 116). See paras. 113-114, emphasis added:

We appreciate that a lengthy murder trial can be very stressful for all involved — the jury, witnesses, counsel, court staff, the judge, spectators and, most especially, the accused person and his or her family, as well as the deceased’s family, friends and supporters. There is so much at stake. Emotions may run high. Things may be said that should not have been, or words spoken in an ill-advised manner. In most cases these moments naturally pass, perhaps after a short break. Sometimes an apology may be warranted. Nevertheless, and notwithstanding where fault lies, it is the trial judge’s responsibility to reduce the stress of conflict, not to exacerbate the situation through harsh words, a raised voice, or distracting and hostile non-verbal communications.

As Lord Denning said in The Family Story (London: Butterworths & Co. (Publishers) Ltd., 1981), at p. 162: “When a judge sits to try a case with a jury, he is himself on trial — before his fellow countrymen. It is on his behaviour that they will form their opinion of our system of justice.”

The mistrial application was dismissed (R. v Ibrahim, 2016 ONSC 7665 – a hefty 66-page decision) – subsequently criticized despite its length. Note defence counsel was racialized – same defence counsel as in R. v. Hill, 2011 ONSC 3935. Another racialized defence counsel recently disparaged here. Their crime? Speaking truth to power. I’ll get into this further, below.

Same judge also in R. v. Ruthowsky, 2018 ONCA 552 – appeal bail sadly denied. Also, similar allegations made against this same judge in both R. v. Gager, 2020 ONCA 274 (albeit dismissed – para. 150) and R. v. Mills, 2019 ONCA 940 (dismissed, e.g. para. 238) – hat tip Chris Sewrattan. Note also R. v. Roberts-Stevens, 2018 ONSC 6184, at paras. 62, 92-95 – agreeing with Paciocco JA’s observation in Ruthowsky that allegations of bias should ideally be brought at trial – not on appeal for the first time.

Same judge again in 2010 – mistrial granted. Note very senior defence counsel in that case (Eddie Greenspan) – one shudders to imagine how a junior counsel would have fared (not that I’ve ever been on the receiving end of a judge’s unseemly wrath for bringing an appropriate – and subsequently vindicated – mistrial application). Then again, in 2017, the same judge granted a mistrial for having uttered an obscenity during trial – just about everyone heard it, but he somehow insisted that he did not, in any event. What is that – 6 known requested (2 granted) mistrials from the same judge in less than a decade? Simply obscene. See here and here for more on this.

This judge was appointed in 2003, had been a Crown since 1984. Retired just last year. No publicly available record of discipline that I could find – likely safe to assume he received no discipline and/or complaints despite his clearly egregious misconduct over the course of a decade or longer.

The assertion that judges – who earn upwards of a half million dollars a year – are somehow vulnerable and deserving of extra protection (e.g. Rule 5.6 of the LSA’s Code of Conduct) is simply preposterous and inappropriate. Seriously?

See also Abbe Smith, Judges as Bullies (2017).

Lawyers’ Civility Requirement

Lawyers sometimes bravely and rightly criticize our justice system. For example, “Systemic racism in criminal punishment is not a uniquely American phenomenon”.

Pre-Groia: “Judge Camp’s conduct and reasons in Wagar angered and disgusted me.” – Prof. (now ABQB Justice) Alice Woolley, emphasis added, ABlawg. Further,

The exhortation to fair and temperate criticism needs to be understood in light of these broader concerns. As the Supreme Court said in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, “lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so” (at para 68).

Or “…The findings affirm Woolley’s initial impressions when she first reviewed the transcript of the original trial. “I had a friend at the Crown and he read it with me,” she recalls. “We said, ‘oh, my God, this is jaw-dropping.’” Also temperate and respectful?[2]

The SCC released its decision – 4 years ago – in Groia v. Law Society of Upper Canada, 2018 SCC 27. Finally, some direction! In its decision, the Court recognized that trials are “often hard fought” and are “not tea parties” (Groia, paras 3 and 99). It is clearly virtuous – and arguably obligatory – lawyerly conduct to “raise fearlessly every issue, advance every argument and ask every question, however distasteful” to advance a client’s interests within the boundaries of the law (Groia, para 73). This is especially true in the criminal context, where liberty interests are at stake and the client has a constitutional right to make full answer and defence (Groia, para 62).

“In other words, allegations that are either made in bad faith or without a reasonable basis [may] amount to professional misconduct” – paras. 81-83. In other words, the presence of good faith and a reasonable basis should be absolute bars to a finding of misconduct. It would be nice if this were the standard enunciated and applied by Law Societies – rather than their obtuse, ambiguous, and contradictory ones (more on this below). Perhaps Law Societies can start by updating their “archaic” (p. 30) legislation in this manner – which clearly were updated after the Groia decision (sarcasm). While they’re (hopefully) at it, getting rid of the “confidentiality” requirement around complaints would also make sense, given that it protects no one but itself from criticism.

Apparently, despite the SCC’s very clear direction in Groia (following a decades-long, obscenely expensive, crippling and wrongful Law Society persecution of him), some law societies appear unprepared to accept its conclusions. Clearly, it is not only some appellate courts that choose to ignore Supreme Court decisions when they are not to their liking.

I have engaged in a bit of research while preparing this blog post, and it is my position that the “line” of civility is extremely ambiguous – pre-Groia, anyway. I have specifically reviewed, among other sources, The Advocates’ Society (rule 78); Groia v. Law Society of Upper Canada, 2018 SCC 27 – reviewed here, and the Law Society of Alberta’s Code of Conduct, e.g. 5.1-1. I note the commentary on 5.6 (emphasis added):

A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations. The lawyer in public life should be particularly careful in this regard because the mere fact of being a lawyer will lend weight and credibility to public statements. Yet, for the same reason, a lawyer should not hesitate to speak out against an injustice. […]

Criticizing Tribunals – Proceedings and decisions of courts and tribunals are properly subject to scrutiny and criticism by all members of the public, including lawyers, but judges and members of tribunals are often prohibited by law or custom from defending themselves. Their inability to do so imposes special responsibilities upon lawyers. First, a lawyer should avoid criticism that is petty, intemperate or unsupported by a bona fide belief in its real merit, since, in the eyes of the public, professional knowledge lends weight to the lawyer’s judgments or criticism. Second, if a lawyer has been involved in the proceedings, there is the risk that any criticism may be, or may appear to be, partisan rather than objective. Third, when a tribunal is the object of unjust criticism, a lawyer, as a participant in the administration of justice, is uniquely able to, and should, support the tribunal, both because its members cannot defend themselves and because, in doing so, the lawyer contributes to greater public understanding of, and therefore respect for, the legal system. [4] A lawyer, by training, opportunity and experience, is in a position to observe the workings and discover the strengths and weaknesses of laws, legal institutions and public authorities. A lawyer should, therefore, lead in seeking improvements in the legal system, but any criticisms and proposals should be bona fide and reasoned.

For example, Rule 22: “Advocates should use tactics that are legal, honest, and respectful of courts and tribunals” (Advocates’ Society). Rules 79-87 include what counsel are entitled to expect from the judiciary, including 82: “Advocates are entitled to expect that judges will not unfairly or unjustifiably reprimand, criticize, disparage, or impugn counsel, litigants, and witnesses, or demonstrate or engage in intemperate and impatient behaviour.”

See also A. Woolley, Does Civility Matter?, (2008), at 188: and “Uncivil by too much civility”?: Critiquing Five More Years of Civility Regulation in Canada, 2013 CanLIIDocs 759, at 266.

Civility in the Courtroom | CanLII: Nicole Lewis, 2019 (stumbled upon excellent freely-available Carleton County Law Association’s criminal law conference materials, 2014-2019). Notes “contradictory” and “ambiguous” (I’d prefer “obtuse”) Law Society rules regarding civility (pp. 3-4), and mentions Groia.

Speaking of Groia, the prominent lawyer Frank Addario trashes the Law Society of Ontario in this 2015 article for the Star. It is so good I will need to quote the majority of it:

In an age when wrongful convictions are unearthed regularly and newspapers abound with stories of government misconduct, one might expect the role of defence lawyers to have earned a modicum of respect.

Guess again. The unsettling case of lawyer Joseph Groia is a shining example of how poorly the role of defence counsel is understood.

Groia is accused of defending his client too enthusiastically. […]

The scorecard is grim for Groia. After a slew of hearings, he faces a one-month suspension of his right to practise law and an order that he pay $200,000 in legal costs. Further appeals will likely focus on two central questions: Is there a need to rein in the defence bar? And if so, is there a means to do so that will not endanger the trial process?

The answer to each question is an emphatic no.

Groia’s sin during the lengthy Bre-X trial was to allege, noisily, that Felderhof had been abused and railroaded. Depending on one’s perspective, his manner was gratuitously rude and bombastic or tough, fearless and effective.

That a lawyer vigorously defending his client could be seen as deserving of professional censure reinforces the popular urban myth that defence counsel are more disruptive than helpful when it comes to achieving justice.

The courtroom is not a trousseau tea, where genteel bewigged lawyers agree to disagree. For the defendant it is a fight for his life; one in which the odds are stacked against him by a better-resourced opponent wearing the white hat. A certain amount of toughness is necessary.

If certain defences are off the table because they are too rude to advance, it is not the defence lawyer who suffers; it is the credibility of the legal system as a vehicle for getting to a just result. If a defence lawyer runs the risk of suffering reprisal, how can she be expected to take an unpopular or even irritating position? […]

Recently, the Ontario Court of Appeal overturned an attempted murder conviction on the basis that the trial prosecutor behaved with unacceptable zeal. The defendant — an intensely religious man entangled in a vitriolic separation — was accused of inciting the couple’s three children to drown their mother. In his closing address to the jury, the Crown referred to the defendant as a dangerous “Jesus nut.”

The chance of this prosecutor being disciplined or fined is close to zero. He might be counselled to temper his enthusiasm, an appropriate solution. Groia, on the other hand, saw his reputation and his pocketbook trashed for his transgressions. […]

If it is too much to expect the general public to understand the importance of what we do, it cannot be too much to ask of those who regulate our profession.

See also this great article on Groia, prior to the SCC decision (emphasis added):

The Ontario legal regulator has done absurd things over the years, but the most egregious is to attack Joe Groia and make him the poster child of a civility campaign.

When the justice system is splitting at the seams, students can’t find jobs, unrepresented litigants are clogging courts and new competitors are emerging to eat lawyers’ lunches, the law society focuses on civility. Rome burns and Nero fiddles. […]

His biggest transgressions were a sharp tongue, piercing words and pushing back hard for his client, despite a threatening letter from Big Brother hanging over his head.

He’s paid the ultimate price. His legal bill is nearing $2 million […]

There’s the rub. In an adversarial system, it takes two to tango, yet Groia was the only one charged. No prosecutors were called on the carpet for their tactics in that trial.

Groia’s case has become one of historical revisionism, with every level of court and tribunal doing what lawyers are so good at — second-guessing, navel gazing and using hindsight. Facts are cherry-picked or ignored to support viewpoints. […]

Rather, the legal regulator circled the wagons around lawyers at the securities regulator, including Naster [Crown], who later worked for the law society on the prosecution of former Torys LLP lawyers Beth DeMerchant and Darren Sukonick.

The profession should be concerned about the Groia case because, in civility prosecutions, defence counsel wear the target on their back.

A 2013 paper by lawyer Don Bayne examined law society statistics from 2010 to 2012 and found that 88 per cent of the incivility complaints involving criminal lawyers were against defence counsel; only 12 per cent involved Crown counsel. Also, judges complain more about criminal lawyers than any other type of lawyer. Bayne identifies a number of instances where the prosecution crossed the line in the Felderhof case, but he notes that Crown counsel “bore no discipline measure of responsibility for its role in the Felderhof incivility.” […]

Let’s hope the SCC sees it as broadly as Brown. Otherwise, litigators, get out your muzzle; the law society is watching you.

All excellent points. Defence counsel absolutely have a target on their back – particularly junior and racialized ones. Crowns are almost never the subject of serious scrutiny by Law Societies – bizarre, given its clear mandate to “protect the public” and the incredible power wielded by that particular office. Would Groia have been able to survive the onslaught had he been less senior and respected? Unlikely. He was called to the bar in 1981 – over 20 years before the brouhaha began.

Racism

The following SCC decision is said to be a racist decision: R. v. S. (R.D.), 1997 CanLII 324 (SCC) – a case I comment on here. See Richard Devlin’s 1995 article pre-dating it and Constance Backhouse’s recent (and quite troubling) article. See criticism from Prof. David Tanovich of our criminal justice system, based on this case. Another good example of a critique of our justice system by a prominent and excellent defence lawyer: “The problem is that it’s so rare to see the presumption of innocence actually play out in the courtroom – especially when the accused is racialized.” I haven’t heard of anyone (yet) getting into trouble for this type of criticism of our highest court. Are allegations of racism condoned while allegations of butchering the law of sexual assault or ignoring the presumption of innocence so obviously beyond the pale and/or scandalous?

I’ve reviewed a recent, “successful” Law Society of Alberta persecution of a senior, racialized defence lawyer on grounds of incivility. Noting Groia, the appeal panel upheld the prior finding of misconduct. The lawyer had sent around a letter complaining about the ethics of a judge whom he had dealt with extensively as a Crown in her prior career (LSA obviously refusing to publish the judge’s name). Given its acknowledgment that Groia suggests good faith and a reasonable basis can be absolute bar to a finding of misconduct, the panel (surprisingly?) found that it was not in good faith. A determination premised on what, you ask? Well, he hadn’t complained to the Law Society (para. 111), so clearly it was a frivolous complaint! I’d be tempted to call this reasoning “asinine” but I’m not sure if that’s permitted. Who do I ask?

A complaint about a former Crown who is now a judge is not an isolated event – nor by definition unjustified, as the LSA appears to think. See R. v. Strybosch, 2021 ONSC 6109.

Why the Law Society was not concerned about the substance of the complaint about the judge (or other Crowns in that office), choosing instead to shoot the messenger, is unclear. Are they protecting the public? It sure doesn’t seem that way. Instead, they seem eager to sanction (and muzzle) racialized, primarily junior, defence lawyers. For shame.[3]

 

[1] Not the first or last time a judge was ambushed in the court of public opinion (see 1990 case of Judge Bourassa).

[2] Speaking of temperate criticism, see Prof. Dufraimont’s new article on rape myths – my Twitter critique of it here and here. Noting my review of Prof. Sankoff’s seminar and this.

[3] Note the LSA’s lip service to “diversity” – e.g. “My Experience” Project – Law Society of Alberta, claiming to give voice to those who have experienced racial discrimination in Alberta.

25 “I have had my fair share of experiences that I can’t term as anything other than discriminatory and stereotyping, specifically by judges”, 2,

4 – “While for the most part, I have been treated with a basic level respect by colleagues in practise, I continue to experience “microaggressions” every day from lawyers and judges a like, that remind me that I am still an outsider” and “We are in a unique position to actively challenge, test, and thereby shape the legal system, and I would argue – it is our duty to do so.”

See also 8, 11, 13, 17, 18, 20, 23, 24, 26, 30.

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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