Canada: Balancing Resolute Advocacy And Civility In The Courtroom: The Supreme Court Of Canada Weighs In On Groia

On June 1, the Supreme Court of Canada released its long-awaited judgment in Groia v Law Society of Upper Canada. In a 6-3 majority decision, the court set aside the finding of professional misconduct made against defence lawyer Joseph Groia.

The Groia appeal marks the first time the Supreme Court has examined the issue of when courtroom incivility may constitute professional misconduct. In addressing this issue, the court emphasized the importance of civilized debate to the peaceful and orderly resolution of disputes. By the same token, however, the court held that civility must co-exist with a myriad of other fundamental values, including resolute advocacy, free expression and the accused's right to make full answer and defence.


Mr. Groia's saga began during a high-profile insider trading trial against former Bre-X senior officer John Felderhof. During a hard-fought and acrimonious trial, Mr. Groia persistently raised allegations of prosecutorial misconduct that impugned the integrity of opposing counsel. In the midst of the trial, the prosecution brought judicial review proceedings arguing the trial judge had lost jurisdiction by failing to constrain Mr. Groia. These judicial review proceedings were dismissed, the trial continued and Mr. Felderhof was eventually acquitted.

The Law Society of Upper Canada (Law Society) brought disciplinary proceedings against Mr. Groia, alleging his uncivil courtroom behaviour amounted to professional misconduct. Both the Law Society hearing panel and appeal panel found Mr. Groia guilty of misconduct. These findings – and the month-long suspension and costs award of $200,000 imposed by the appeal panel – were upheld by the Divisional Court and a majority of the Ontario Court of Appeal.

Civility – What is expected of lawyers?

In allowing the appeal, the majority of the Supreme Court found that Mr. Groia had not committed professional misconduct and dismissed the complaints brought against him. The court recognized that courts and law societies enjoy "concurrent jurisdiction" to regulate and enforce standards of professional conduct in the courtroom, and that law societies have significant expertise in regulating the profession.

Reviewing the appeal panel's decision on a standard of reasonableness, Justice Moldaver – writing for the majority – upheld the test elaborated by the Law Society's appeal panel pursuant to which allegations of professional misconduct that impugn the integrity of opposing counsel constitute professional misconduct unless they are made in good faith and have a reasonable basis. The test is part of a broader "fundamentally contextual and fact specific" inquiry to determine when courtroom incivility amounts to misconduct, requiring consideration of all relevant factors including, but not limited to: (1) the nature of what the lawyer said; (2) the manner and frequency of the lawyer's behaviour; and (3) the trial judge's reaction. In remaining faithful to this totality-of-the-circumstances approach, the court stayed away from a one-size-fits-all definition of when incivility amounts to professional misconduct, which Moldaver J. described as "neither attainable nor desirable."

Applying this test, the majority of the court concluded that counsel can allege misconduct against an opponent if the allegation is based on a sincerely held legal position (i.e., good faith) – even if the legal position is controversial, novel, or plainly wrong – and is supported by some non-speculative, factual foundation (i.e., reasonable basis).

According to the majority, having accepted Mr. Groia's good faith, the appeal panel could not rely on the fact his position at trial was wrong in law in order to find his allegations of prosecutorial misconduct were without a reasonable basis. The majority also gave significant weight to the trial judge's hands-off approach and Mr. Groia's compliance with the trial judge's instructions once he chose to intervene. In the circumstances, the majority thus concluded that the only acceptable outcome was finding Mr. Groia not guilty of professional misconduct.

The three dissenting judges agreed the standard of review was reasonableness, but criticized the majority's application of this standard and the test for misconduct. In their view, the majority effectively created a novel mistake of law defence that would immunize lawyers from disciplinary sanction whenever their allegations are based on honestly held legal beliefs.

Implications of this decision

Noting that trials are not tea parties, the court affirmed the importance of minimizing a chilling effect on the kind of resolute advocacy that is at times necessary to advance a client's cause. On the other hand, the court recognized that incivility is damaging to trial fairness and a lawyer's gratuitous challenges to opposing counsel's integrity may give rise to professional discipline unless allegations reflect an honestly held legal position and a sufficient factual basis. In the majority's view, this approach ensures free expression, resolute advocacy and the right to a full defence are not sacrificed on the altar of civility.

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see

Law around the world

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions