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Press Release: BCCLA reacts to Supreme Court of Canada ruling on lawyer incivility

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For immediate release 

OTTAWA – Today, June 1, 2018, the Supreme Court of Canada issued its decision in Groia v. Law Society of Upper Canada, a case regarding the proper role of law societies in regulating the civility of lawyers’ in-court conduct.

In 2012, Ontario’s law society found Mr. Groia guilty of incivility for the way he conducted himself in the courtroom during the trial of his client. Mr. Groia maintained he was acting as a forceful, but proper advocate for a client who faced serious charges.

The British Columbia Civil Liberties Association (BCCLA) and Independent Criminal Defense Advocacy Society (C-DAS) co-intervened in the case to offer the Court a framework for evaluating claims of incivility arising from counsels’ in-court submissions and behavior. BCCLA and C-DAS asked the Court to recognize a qualified privilege for in-court counsel conduct, where disciplinary action would lie only where counsel’s conduct was motivated by actual or express malice.

In today’s decision, the Supreme Court of Canada allowed Mr. Groia’s appeal, finding the disciplinary decision against him to the unreasonable. The Court agreed with the flexible, contextual test for incivility that was applied to Mr. Groia, which required him to make claims in good faith and on a reasonable basis. The Court found this test appropriately balanced lawyers’ expressive rights with the Law Society’s statutory mandate to regulate lawyers in the public interest. However, the Court found that the test had been misapplied to Mr. Groia, who was defending his client in good faith and on a reasonable basis.

Jay Aubrey, Counsel with the BCCLA, stated: “The BCCLA intervened out of concern for the chilling effect of after-the-fact censure on counsel advocacy. Absent a clear and appropriate standard of discipline, counsel may well avoid rigorous forms of advocacy on behalf of their client in an attempt to protect themselves from future discipline. Lawyers are, in part, a vehicle for their client’s free expression, and play a fundamental role in their clients’ ability to access justice. The standard of discipline for incivility ought to reflect these important purposes.”

The BCCLA is represented by Joseph Arvay, Q.C., of Arvay Finlay LLP.

The BCCLA’s argument in the case can be found here.
The Court’s decision can be found here.

WHAT:                Supreme Court of Canada issued reasons for judgment in Groia v. Law Society of Upper Canada

WHEN:                Friday, June 1, 2018 at 6:45 am ET/9:45 am PT

WHERE:              Supreme Court of Canada (Ottawa, Ontario)

CONTACT:          Jay Aubrey, BCCLA Litigation Counsel, at [email protected]