Law Times

Law TiMes • March 28, 2011 NEWS PAGE 9 Case does little to clarify incivility, lawyer says Continued from page 1 Th e fi nal straw for Lafrenière came during a custody hearing on Feb. 25, 2010, after the judge told Bruce to move on from a point she was making. "Yes I will, your honour. Yeah, I'll move on with my report to the Canadian Judicial Council as well," Bruce said, according to a transcript of the proceedings fi led with the hearing. Lafrenière then cited Bruce for contempt for threatening the court. Th e judge eventually found her in contempt of court at a hear- ing four months later at which Bruce was fi ned $500. During that proceeding, Bruce accused the judge of "sharp practice" and "intimidation" when she raised her complaint to the law society about Bruce's conduct. Bruce told the hearing her comment wasn't a threat because she did in fact move forward with her complaint, a move she says she was entitled to make. "Th is is a case where I was cit- ed in contempt for using a very lawful mechanism," she said. It wasn't the fi rst spat between Bruce and Lafrenière, who had previously warned the lawyer of a possible contempt citation if she left the courtroom during a hear- ing on a separate matter. Bruce was seeking an adjournment while her client sought legal aid. "I'm not getting paid to be here right now," Bruce said, ac- cording to the transcript. Bruce also objected to Lafrenière's handling of a settle- ment conference involving an- other client. "I think it should be conduct- ed as a settlement conference, not as some draconian court proceeding," Bruce said, accord- ing to a transcript of the matter. "I've never had a judge take such an antagonistic tone. . . . I know it's diffi cult, but if you could just respect me for fi ve minutes." Superior Court Justice Alex Pazaratz, another complainant, awarded $2,000 in costs against Bruce personally in one case. He characterized her approach as "unnecessarily infl ammatory" and chided her for presenting "lengthy, unfocused, and irrel- evant" materials. "If you think you're going to control the way I advocate, you're wrong," Bruce told Pazaratz, ac- cording to a transcript. But Bruce said civility cuts both ways and argued she had been subject to rude and insult- ing comments from the bench. In any case, transcripts can never give a true picture of what hap- pened in court, Bruce said, add- ing she had never swore or raised her voice in court. Without hear- ing audiotapes, "Th ere is a funda- mental lack of understanding of the dynamic" in court, she said. "Th ere was never one instance where I have lost control of my- self," she told the panel. "Anyone who was not in court that day is not in a position to be interpret- ing these transcripts. Th e context is extremely probative." In her evidence, law society investigator Renae Oliphant admitted that the intonation of speech is lost in transcripts but said the content is critical. She was present on June 22 when Lafrenière found Bruce in con- tempt of court. "Ms. Bruce was appropriate in the manner in which she was speaking. My concern was the content of the words. Th ere was no yelling or raised voices. Th ey were speaking in very normal, monotone-esque voices. Th ere was nothing that would have caught my attention had I not been listening to the words." Th e ongoing matter comes Justice staff get stress sessions Continued from page 1 920 federal lawyers, paralegals, and staff , with an additional 556 counsel retained through 226 agent fi rms nationwide. "I know from feedback I'm getting from prosecutors that they're overwhelmed because of new legislation," said NDP MP and jus- tice critic Joe Comartin. "Th e government's reluctance to put in- formation out is an admission of how much their tough-on-crime program is going to cost." Th e comments come as recent media reports noted the Justice Department had put out a call for proposals to deliver stress-re- duction workshops for its staff . Finance Minister Jim Flaherty, however, provided no details of new spending on prosecutions but told reporters the government will reintroduce his budget in its entirety in the next Parliament if the Conservatives win re-election. "Oh, absolutely," said Flaherty. "Th is is a good budget. I look forward to the Canadian people supporting it." Documents show the offi ce of the director of public prosecutions is one of the fastest-growing agencies in the government with fore- casted spending of $172 million in the new fi scal year compared to $158 million two years ago. Th at's a nine-per-cent increase. Th e single budget reference to new hiring in Nunavut aff ects a territory with the highest police-reported crime rate in the nation, including the top homicide rate of 18.6 per 100,000. Th at's twice the rate in neighbouring Northwest Territories and 14 times On- tario's homicide rate. Nunavut has a population of 33,000 residents over a land mass three times the size of France. About 130 offi cers police it. after another lawyer who ran into trouble for an encounter with the bench was found guilty of four counts of professional miscon- duct earlier this month, including one that related to an exchange with Justice William Bassel of the Ontario Court of Justice. Bassel believed Ernest Guiste had missed four judicial pretri- als in a matter when in fact he had missed only one. Two of the pretrials involved co-accused rep- resented by other counsel whom Bassel believed had been incon- venienced by Guiste's absence. "So this thing about Mr. Rob- bins, or whoever he is, Johnny Cochrane come lately, or what- ever, whoever he is, I've never seen him," Guiste told the court, according to the transcript. Despite the confusion, a law society panel found Guiste had failed to show the court the "ut- most courtesy and respect." It noted the court had found his remarks "sarcastic and off ensive and discourteous." "Perhaps I ought to have shown a little more restraint, but at the same time, when you have somebody falsely accusing you of something and being unrelent- ing, as a human being, you might react," Guiste tells Law Times. "Does a judge have absolute right to berate a lawyer, even when he doesn't have his facts right? Th ese are things we need to discuss as a profession." Guiste was also found guilty of professional misconduct stem- ming from a mediation session in which he told opposing coun- sel to take his opening off er and "shove it up your ass." Counsel for the law society also said Guiste's assertion in the meet- ing that "someone doesn't need to grab a tit for it to be sexual harass- ment" was unprofessional. Two more counts related to chains of correspondence in which Guiste called his oppo- nent's client a "cash cow" and told one lawyer he was "speaking nonsense." "Th e lawyer appears to have lost respect for his opposition which, in his view, grants him the right to use a condescending tone when dealing with other lawyers on the fi le and the assistant," wrote adjudicator Adriana Doyle on behalf of the panel. As Guiste acknowledges, "I shouldn't have said what I said." Still, he maintains he was react- ing to diffi cult lawyers on the other side whom he felt were try- ing to intimidate his client. He says his case does little to clear up confusion about what constitutes uncivil conduct. "I'm being prosecuted suc- cessfully on vague standards," he says. "I'm not saying civility is a bad thing. It's a good thing. But when you impose arbitrary stan- dards that are not clear in terms of their conduct, the only person that suff ers is the person who's fi ghting for justice." Guiste remains troubled that the LSUC allowed the com- plaining lawyer to violate a con- fi dentiality agreement signed by all parties before the mediation conference. "Th at sets up a very dangerous precedent," he says. "Public policy encourages par- ties to try and settle cases, and a confi dentiality agreement allows parties to tussle with each other back and forth and negotiate. If there's a confi dentiality agreement in place, it should be respected." Th e panel dismissed that rea- soning in its decision, saying it couldn't agree with the proposi- tion that "closed mediation can- not occur with total adherence to professionalism and good conduct in accordance with the Rules of Professional Conduct." A hearing on penalty has yet to be scheduled. Untitled-3 1www.lawtimesnews.com 3/22/11 2:52:08 PM

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