The question of Joe Groia’s conduct during his defence of Bre-X executive John Felderhof continues to make headlines a decade after the fact.
He is accused of a lack of civility toward the prosecution, which was representing the Ontario Securities Commission. Groia has consistently stood by his tactics, and stressed in an interview with the Globe and Mail that the hearing into his actions could have repercussions across the defence bar. “I think any time a defence lawyer stands up in court, and as part of his defence of his client must attack the prosecution … I think they will be hyper-cautious.”
The latest news came yesterday, when a Law Society tribunal reserved judgement in Groia’s request that misconduct charges against him be quashed. Groia’s lawyer, Earl Cherniak, argued that the case against his client was “flawed” and “vague,” in part because Law Society investigators did not obtain a copy of the transcripts from the Bre-X trial.
The Law Society explained that they did not need the transcripts, because all of the key excerpts are available as part of the Ontario Court of Appeal case during which lawyers for the OSC attempted, without success, to remove the judge in Felderhof’s trial. The OSC lawyers argued, among other things, that Mr. Justice Peter Hryn had failed to restrain Groia’s attacks.
The Court’s decision, by Justice Archie Campbell, includes many examples of Groia’s alleged misconduct — sizeable portion of which centres on the defence’s position that the prosecution was focused entirely on seeking a conviction.
The decision is frequently critical of Groia’s conduct. Part of a section titled “Mr. Groia’s rhetorical excess” reads:
Mr. Groia’s defence consists largely of attacks on the prosecution, including attacks on the prosecutor’s integrity. It is one thing to suggest that the prosecutor has a wrong view of the scope of his disclosure obligation or that the prosecutor is obliged to prove the defence case. It is another thing to attack the prosecutor’s integrity. Mr. Groia’s basic stance is that any position argued by Mr. Naster, with which Mr. Groia disagrees, is not just wrong but also outrageously improper. It would be reasonably open to Mr. Naster to conclude that whenever he took a position with which Mr. Groia disagreed, Mr. Groia would characterize Mr. Naster’s position as unethical.
Earlier in that same section, Justice Campbell quotes numerous statements made in court by Groia, and characterizes them as egregious in their delivery. “While Mr. Groia had every right to make submissions about alleged abuse of process and prosecutorial misconduct,” reads the decision, “it was unnecessary for him to couch those submissions in a repetitive stream of invective against Mr. Naster’s professional integrity.” Justice Campbell stressed that the quoted passages “do not adequately convey the personally biting effect of Mr. Groia’s unrestrained repetition of his sarcastic attacks.”
The following Groia arguments are then quoted:
• Their conduct from the beginning of this case to the end of this case, in my submission, has been intended to ensure that they make Mr. Felderhof’s life and his ability to defend himself as difficult as possible, and as miserable as possible.
• …Individually, there may be explanations. Mistakes were made, we’ve been told. We accept that. But when you put them all together, it’s my submission to this court that that shows a pattern of conduct. It shows an animus towards the defence and Mr. Felderhof. And it shows that the Commission is prepared to do just about anything it possibly can, unless the law absolutely insists that they do something different, to avoid being fair to Mr. Felderhof.
• Somebody needs to tell us we got everything and it’s just not right, in my submission, for the Securities Commission to say we’re too lazy, we’re too busy, we’ve got better things to do than go through the material to try and fix the mess that we have created.
• Only if this court is prepared to say that the word of the Government is meaningless, that the representations of the Government are meaningless, that the statements of the Government on the record are meaningless, that you can’t rely on anything the Government says anymore, is there any basis for my friend to make the submissions that he’s making.
• …I don’t have a difficulty with how we have proceeded with putting the documents in. Mr. Naster got 231 exhibits in without a lot of fuss and muss, in my submission, about those kinds of issues. He’s not happy about it, because it’s hard work. Well, that’s too bad, Your Honour. Prosecutions are supposed to be hard work and they are supposed to be done in a manner that accords with the rules of law, and I think that’s what your ruling does and I guess I close the way I began, I don’t see anything illogical about it. You haven’t created two different standards. You’ve just simply said, they are the prosecutors. They have a different job than the defence.
That’s the way it’s been for thousands of years. I didn’t realize that somehow there was now a case out there that said that somehow the defence’s job was to save money for the Securities Commission so things would go smoothly ‑ it wouldn’t be so difficult ‑ and sacrifice Mr. Felderhof’s rights along the way.• ….You have this document appear in a Crown binder. You have it as part of the core of the Crown’s case and they forget to ask Mr. Francisco about it. They forget to ask Mr. Francisco whether Placer Dome reported to him about this discussion. They forget to ask him whether Dr. Kuntoro ever said something along the same lines as what he told John Willson.
Now, is that an oversight, Your Honour, or is that another suggestion that because this document doesn’t pass the conviction filter test, it gets ignored in the examination in‑chief? And when the defence stands up and says, Well, Your Honour, we want to use this document,” the Crown says, I just want to clarify, Your Honour, if Mr. Groia gets to put this document in, that means, or does that mean that we’re entitled to put in any Placer Dome document we want?”
Well, Mr. Groia wouldn’t have to put this document in if the Crown had done its job properly, because this document would have already been in evidence because it’s an exculpatory document, and not only should it have been brought to Your Honour’s attention, but they should have put a big red star on it and said, We want you to pay particular attention to this one, Your Honour, because this one maybe does help Mr. Felderhof.”
So, Your Honour, my submission to you is that in the Crown Volumes – and I’m not going to take you through – I’ve got 50 or 75 or 100 Crown Volume documents I had planned to put Mr. Francisco that I think the Crown should have put to Mr. Francisco and that the failure to do so, in my submission, can only be explained by the fact that the Government continues to adopt a convict at all costs’ approach to this case.• And now they come this morning, having told Mr. LeVay that they were going to find some way of making sure Dr. Kavanagh wasn’t needed this week – now they come today and they ask for an adjournment; in other words, they are bound and determined to find some way of stopping this court from ensuring that Mr. Felderhof gets a fair trial, and I say, Your Honour, that demonstrates an actual disregard for the dignity of your courtroom and, as I say, there are many judges who would find that if what Mr. LeVay told us is an accurate reflection of what he was told by Mr. Naster, there are many judges who would find the Securities Commission in contempt.