Canada: Groia v. LSUC: The Mistake Of Law Defence To Incivility

Last Updated: September 17 2018
Article by Stephen G. Ross

The Supreme Court of Canada recently released its decision in Groia v. Law Society of Upper Canada, 2018 SCC 27. The appeal was allowed and the Law Society appeal panel's finding of professional incompetence was overturned.

Majority Decision

The majority of the Court found that professional misconduct allegations arising from counsel raising issues of prosecutorial misconduct, or impugning the integrity of opposing counsel, will be undertaken on a broad contextual basis.

As part of the analysis, the majority agreed with the Law Society panel's decision that such allegations of impropriety on the part of opposing counsel could only be made if they are undertaken in "good faith" and there is a "reasonable basis" for the allegation.

The majority, the panel and, indeed, the dissenting judges of the Supreme Court of Canada part company in the interpretation of the "reasonable basis" requirement. The majority found that a lawyer can be seen to have a "reasonable basis" even if the underpinning of that basis is an error of law, even an outrageous or egregious one.

In this case, Mr. Groia was under the mistaken understanding of the prosecutor's obligations and of certain key evidentiary aspects of the hearing.

It was as a result of his misunderstanding of the law, among other contextual issues, that Mr. Groia believed the prosecution to be engaged in prosecutorial misconduct.

This was sufficient to dispose of the matter from the perspective of the majority. In other words, if one viewed the matter as Mr. Groia did, in terms of his mistaken assumption regarding the Crown's obligations and the rules of evidence, his allegations of misconduct had a reasonable basis.

The majority considers the "reasonable basis" test to be comprised simply of a factual foundation to underpin the (even incorrect) genuinely held, but mistaken, belief in the improper conduct of opposing counsel.

Here, Mr. Groia was under the mistaken belief that the prosecutor had a legal obligation to not only disclose, but tender into evidence, all relevant and even exculpatory documents and evidence. This was clearly wrong in law.

However, based on this legal [mis]understanding, Mr. Groia believed that the prosecutor's failure to abide by this erroneous obligation to be evidence of prosecutorial misconduct.

The majority takes the position that gross legal errors should not be considered at this stage of the legal test; rather, they would form part of the "good faith "aspect of the test. In other words, the more outrageous the erroneous legal belief, the more unlikely it is that it is actually, or genuinely, held.

Moreover, the majority found that professional misconduct allegations based on outrageous or egregious legal errors would be better left for criticisms with respect to a lawyer's competency rather than incivility.


Conversely, the Law Society appeal panel and the Supreme Court of Canada dissent were of the view that errors of law can be so egregious that submissions based on those errors can have no "reasonable" basis.

The dissent found that allegations, although advanced in good faith, may nevertheless constitute professional misconduct if they have no "reasonable" legal basis.

The dissent notes that the majority test creates a "mistake of law" defence to allegations of professional misconduct, at least those based on allegations of incivility.

The dissent feels the majority has rendered immune from sanction, conduct based on honest but mistaken belief in an opposing counsel's obligations, irrespective of how baseless or ill-informed that legal belief. This is an interesting and controversial approach to evaluating the professional (mis)conduct of a legal professional.


Regardless of one's personal views of the case, the majority approach, of course, rules the day and the law of the land has now been set.

It is clear that allegations of professional misconduct based on incivility must consider both whether counsel had a good faith basis for his or her allegations of the misconduct of others, as well as having a reasonable, factual basis, irrespective of the legal foundation upon which the factual claim is set.

If one has a good faith but mistaken belief with respect to the legal and ethical obligations of opposing counsel, one need only have a factual basis for the belief (the person did not do the thing they are actually not required to do), notwithstanding how egregious or ill-informed one's position is in law as it relates to the rules of evidence or the obligations of opposing counsel.

In short, it appears there is, indeed, as the dissent indicates, now a mistake of law defence to allegations of professional misconduct as it relates to civility in the courtroom. As the adage goes, hard facts make bad law and one gets a sense of how far the majority had to go to shape the law in a fashion such that Mr. Groia's conduct did not run afoul of it.

It is apparent, from a review of the decision, that much rested on the fact that Mr. Groia's mistaken views were honestly held, based on his misunderstanding of the law; and that those views went unchecked and uncorrected until phase two of the proceedings, after which Mr. Groia's conduct was said to have been appropriately altered.

As such, it would seem it is now all the more important for the court (urged upon by opposing counsel being unfairly maligned) to intervene to advise and instruct the accusatory counsel of his or her misunderstanding of the legal obligations of his or her opponent. It would appear clear that once the legal misunderstanding was removed, any and all defences of Mr. Groia's (and other accusatory counsels') behaviour would fall away.

In short, it would seem that all players in the administration of justice have a role to play in ensuring that trials are fought fairly, in a manner in which fearless advocacy can still be fostered; but incivility is not.

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.

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