Law Times

June 11, 2018

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Page 2 June 11, 2018 • Law Times panel was required. It was criti- cal of the legal analysis employed by Moldaver. "We are of the view that he fundamentally misstates the Ap- peal Panel's approach to profes- sional misconduct, and reweighs the evidence to reach a differ- ent result. This is inconsistent with reasonableness review as it substitutes this Court's judg- ment for that of the legislature's chosen decision maker," wrote justices Andromache Karakat- sanis, Clement Gascon and Mal- colm Rowe. "Further, we have serious concerns about the impacts that will follow from our colleague's analysis and disposition in this appeal," they wrote. In a separate judgment that concurred with the majority that the law society penalties should be set aside, Justice Suzanne Côté stated that the reviewing standard should be correctness, not reasonableness, when it in- volves conduct before a judge in open court. The other eight judges found that the standard of review is reasonableness. LT The trial resumed before Hryn with a new OSC prosecu- tion team and no further com- plaints about Groia. In his decision in 2002 that ruled against the OSC appli- cation, the late justice Archie Campbell found fault with Groia and, to a lesser extent, lead prosecutor Jay Naster. The judge noted, however, that a trial "is not a tea party," a phrase echoed by Justice Mi- chael Moldaver, who wrote the majority decision for the Su- preme Court. What is still to be seen is whether the Groia case has pro- vided more clarity on what is ac- ceptable conduct for lawyers in court. The original law society panel decision in June 2012 suggested that incivility undermines the rule of law. "Legal disputes should be resolved rationally in an envi- ronment of calm and measured deliberation, free from hostility, emotion, and other irrational or disruptive inf luence," wrote Ot- tawa lawyer Thomas Conway in a decision issued the same day he began his term as treasurer of the law society. While it is important to be professional and respectful in court, the view that "an environ- ment of calm trumps all else" misunderstands the role of a lawyer, says Groia. "Civility means you have to be courteous. But your primary duty is to your client. I should be courteous, but I do not have to be friendly," says Groia. Bernard LeBlanc, a partner at Steinecke Maciura LeBlanc in Toronto, says the ruling gives "wide latitude" to lawyers in terms of conduct in court before it might merit a possible disci- plinary hearing. "This is how it should be, provided it is in good faith," says LeBlanc, who advises and acts for regulators of a number of professions. For lawyers who act improp- erly and frustrate civil litigation proceedings or discipline hear- ings, there are other remedies, such as an increased costs award, he notes. Edward Sapiano, a Toronto- based criminal defence lawyer who has represented clients in dozens of jury trials and many murder prosecutions, says act- ing forcefully is not necessarily improper. "You are supposed to catch more f lies with honey. In court, that is not always the case. I al- ways try to be civil. But in the face of dishonesty or aggression, you sometimes need to respond. Failing to do so is letting your opponent trample your client's rights," he says. "He was there to do a job for his client and he won," Sapiano says in reference to Groia. The law society proceeding was a result of "sour grapes" in the "ivory towers of justice," Sa- piano says. However, in a statement re- leased after the ruling, the law society said the ruling "reaf- firmed the important role of the Law Society of Ontario in regu- lating in-court conduct and the importance of both civility and resolute advocacy." "Although the Court allowed Mr. Groia's appeal, the Court ac- cepted the test for incivility and misconduct that was defined by the Law Society's Appeal Panel," said the news release. "On the facts of this case, how- ever, the Court concluded that Mr. Groia's in-court statements which gave rise to the proceed- ing, were made in good faith and were reasonable, based on a view of the law that turned out to be incorrect, and did not constitute professional misconduct." An unusual aspect of the Supreme Court majority deci- sion, written by Moldaver, is that while the "contextual" test ap- plied by the law society appeal panel was found to be reason- able, its findings on misconduct were deemed unreasonable. The dissenting judgment concluded that, on the reason- ableness standard, deference to the conclusions of the appeal as well as those for making or accessing child pornography. His making child pornog- raphy conviction is related to the then-24-year-old basketball coach convincing a 16-year-old aspiring player to send explicit photos and videos of him in exchange for money, food and clothing. Other mandatory mini- mums, including ones for lur- ing, sexual exploitation and sexual interference, have been struck down by the courts for breaching the Charter. "The seriousness of the of- fence has no bearing on the analysis," state Frank Addario and Secter in written submis- sions filed with the Court of Appeal on behalf of Cristoferi- Paolucci. "Sexual offences are routine- ly struck because they capture too wide an array of conduct. Child pornography offences are no different. The sentence can- not distinguish between those accessing, possessing or making large collections, as opposed to one image, stills as opposed to videos, cartoons as opposed to real children, young children as opposed to those about to turn 18," they write. The broad nature of the of- fence could also result in a man- datory jail term for an 18-year- old who receives and keeps a "sext" from a boyfriend or girl- friend who is 17, note lawyers Janani Shanmuganathan and Gerald Chan, in written sub- missions filed on behalf of John at the Court of Appeal. "A six month sentence is grossly disproportionate for the mere possession of a single inti- mate photo sent consensually by an adolescent to a young adult," they write. Two of the three offences that are being challenged are hybrid, so that the minimum punishment depends on how the Crown proceeds with its prosecution. That process was highlighted by the Supreme Court in Nur as an example of one of the f laws with mandatory minimum sen- tencing provisions. "Sentencing is inherently a judicial function. It is the courts that are directed by Parliament to impose a mandatory mini- mum term of imprisonment, and it is the duty of the courts to scrutinize the constitutionality of the provision. The Crown's submission is in effect an invitation to delegate the courts' constitutional obli- gation to the prosecutors em- ployed by the state," wrote then- chief justice Beverley McLach- lin for the majority. Michael Dineen, a Toronto- based criminal appeals lawyer, says in Nur and in its decision in R. v. Lloyd that the Supreme Court has focused on the fair- ness of the mandatory mini- mum sentence on "the lowest- level offender" charged with the offence and not only the nature of the crime. In a decision last month, however, the Court of Appeal stated that "denunciation and general deterrence" are the pri- mary sentencing principles for individuals convicted of child pornography offences. In R. v. Inksetter, the court increased the sentence to three and a half years in prison for a 51-year-old man convicted of possessing "one of the largest and worst collections of child pornography" uncovered by the Ottawa police. The trial judge had imposed a sentence of two years less a day, followed by three years of probation with requirements to undergo counselling and terms that would allow police to search his electronic devices. "Child pornography is a per- vasive social problem that af- fects the global community and its children," wrote Justice Alex- andra Hoy for the three-judge panel. "In his focus on probation, the trial judge gave primary ef- fect to the objective of rehabili- tation rather than the objectives of denunciation and general de- terrence." While this case involved a serious offender, the ruling shows that the Court of Appeal is sending a message about how to combat child pornography, says Dineen. "The only way to try is through general deterrence. That is something this judg- ment is trying to establish," he adds. LT NEWS 'Not all offenders are the same' Continued from page 1 Continued from page 1 'I should be courteous, but I do not have to be friendly' Tell us which legal vendors and service providers are the best at what they do and help put your choice on the podium. Vote and you could win a $200 gift card. Visit VOTING CLOSES JUNE 25 LET'S GIVE THEM THE RECOGNITION THEY DESERVE CHOOSE YOUR FAVOURITE SUPPLIERS THE THIRD ANNUAL CANADIAN LAWYER READERS' CHOICE SURVEY IS NOW OPEN Untitled-4 1 2018-05-22 3:32 PM

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