Law Times

Law Times • June 25, 2018 Page 7 www.lawtimesnews.com SCC took danger to heart in Groia BY MATTHEW GOURLAY W hen the Supreme Court overturned the findings of professional misconduct against Joe Groia, the deci- sion was warmly received by the crimi- nal defence bar, which had taken it on as something of a collective cause. As everyone knows by now, Groia behaved obstreperously in the course of a lengthy trial a decade and a half ago in which he successfully defended his client against Securities Act charges. His conduct in making repeated and baseless challenges to the professional integrity of the OSC prosecutors eventually netted him a pro- fessional discipline charge for "incivility." The law society won at the original hearing and at the first three levels of appeal. Groia finally prevailed in the Supreme Court, with a 6-3 majority overturning the finding of professional misconduct. Groia did behave badly, the court found, but his allegations against the prosecution were made in good faith and had a reasonable basis (more on that in a minute), so the test for incivility was not satisfied. The important thing for the defence bar was the court's strong affirmation of the importance of a fiercely independent defence bar and its formulation of a test that will confine incivility prosecutions to fairly extreme instances. In his reasons for the majority, Justice Michael Moldaver purports to adopt the test for incivility developed by the tribu- nal and accepted by the lower courts. On this formulation, allegations of misconduct against op- posing counsel will not jus- tify a finding of incivility if they are made in good faith and have a reasonable basis. But in an unusual twist, Mol- daver found that even when purportedly assessed on the deferential "reasonableness" standard, the result reached by the tribunal was unsus- tainable. Why? In effect, the majority found that Groia hadn't been uncivil, just ignorant of the law. He believed, in good faith, that the OSC prosecutors had mis- conducted themselves by not tendering all relevant documents in evidence even though, in reality, no such obligation ex- ists. In Moldaver's telling, this faulty legal theory was the basis for Groia's allega- tions and provided them with a "reason- able basis." In other words, the lawyer's own misunderstanding of the law ended up providing the reasonable basis for his mistaken allegations of misconduct. This is, to my mind, strange. A crimi- nal accused cannot rely on a mistake of law — even one made entirely in good faith — in order to avoid being convicted and potentially imprisoned. How can it be that a lawyer, whose professional duty it is to know the law, may rely on their own legal ignorance to avoid a finding of mis- conduct? An informed layperson might legitimately wonder what is going on here. On the other hand, there is something to the distinction drawn by Moldaver between compe- tence and civility, which are not the same thing but are both valid concerns for the regulator. A lawyer whose own misunderstanding of the law causes him to make base- less allegations of misconduct against a colleague may be more properly prosecuted for incompetence than for inci- vility. The lawyer's incivility may well be just a symptom of a deeper competence-based problem. The problem is that few — if any — lawyers are ever prosecuted for incompetence. Perhaps one reason is that incivility an- noys other lawyers while incompetence is mainly the client's problem. My sense is that the Law Society Of Ontario could do better in this respect. As for the Supreme Court's stringent test for incivility, I see it as a welcome — if subtle — retreat from the court's Jordan follow-up decision in R. v. Cody (2017), which was poorly received by the defence bar. There, the court elaborated on what counts as "defence delay" for the purposes of the s. 11(b) unreasonable delay analysis, which was revolutionized the previous year in Jordan. According to Cody, any defence conduct that is "illegitimate" will not count toward the Jordan presumptive ceilings. While the court was careful in Cody to note that not all "illegitimate" defence positions will amount to professional misconduct, the terminology it used was unfortunate. Now, under Cody, s. 11(b) applications tend to devolve into recipro- cal finger-pointing by Crown and defence about whose conduct was worse. This is hardly a recipe for the culture of civility that, according to the court in Groia, is effectively the "glue" that holds the system together. And, yet, at a time when Crown counsel are being encouraged by the s. 11(b) jurisprudence to label unmeritori- ous defence positions as "illegitimate," it would have been unseemly for the Groia court to place tight strictures on defence counsel's ability to make allegations against the Crown. In time, I hope the court will see fit to revisit Cody and clarify that allegations of illegitimacy are unnecessary in the s. 11(b) context — and ultimately unhelp- ful in fostering a broader culture of civil- ity. That culture exists because it's rightly seen as mutually beneficial to the parties and more conducive to trial fairness than the alternative. The threat of professional sanction is not why most lawyers conduct themselves in a civil fashion, but it certainly could chill aggressive advocacy if the test were too broadly drawn. Despite the ques- tionable manner in which the result was reached, it seems that the Supreme Court took that danger to heart. LT uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litiga- tion. He's available at mgourlay@hhllp.ca. Single law needed on common-law separation BY ROBERT SHAWYER A bout 41 per cent of Canadian marriages today do not end in "death do us part." Instead, they end due to mutual in- compatibility and in an excessive amount of paperwork. Finalizing a divorce can — and often does — take years. It is both financially and emotion- ally draining. Divorcing couples can and do lose their homes, friends, communities and a staggering amount of money as they go about the arduous task and sorrow of extracting separate lives from what was meant to be a permanent union that has been torn asunder. In Ontario, the process of divorce is governed by a combination of the Divorce Act and Family Law Act, which lay out the rights and obligations of the divorcing parties. In addition to spousal support, divorcing cou- ples are entitled to an equalization of net family prop- erty (a process designed to ensure both spouses benefit from financial gains made by the couple throughout the marriage) and continuing rights to the family home, even if only one spouse has their name on title. What about those couples who never formally ex- change vows? Common law marriage — where a couple shares a home, finances and often children without be- ing legally married — is on the rise in Canada. As of 2016, according to Statistics Canada, one fifth of all couples live in common law relationships. Whereas divorcing couples are largely governed at the federal level, which provides for a great deal of uni- formity, common law couples who choose to separate is largely governed at the provincial level. As a result, every province seemingly has its own approach to gov- erning the breakdown of common law relationships, and Ontario's approach is abysmal. In Alberta, you can find yourself in an Adult Inter- dependent Relationship without having entered into a conjugal relationship as long as you have cohabited with another unrelated adult for at least three years in a mutually dependent relationship or agree to form that partnership in writing. In Manitoba, common law couples are granted all of the same property rights as married couples under the Common-Law Partners' Property Act, and they have the option of registering their partnership under the Vital Statistics Act. In 2013, the British Columbia legislature redefined spouse to in- clude common law couples who have lived together for at least two years, functionally erasing the difference between common law and legally married couples. Ontario's Family Law Act does not explicitly recog- nize common law relationships, but it does grant some rights and responsibilities to couples who have either cohabited for at least three years or lived together in a relationship of some permanence and have children together. So what do Ontarians gain from withholding the full measure of marital protections and privileges from common law couples? Is it easier to extract your- self from a marriage-like relationship if you never actu- ally married? Not always. If a couple keeps separate finances, each person remains focused on their own careers and they don't have children, separation will be easier than divorce. However, once the detritus of family living begins to accumulate, that simplicity disappears. For example, in Ontario, if title to the home in which the parties live is in the name of only one party but the other spouse was responsible for physically doing or paying for renova- tions to the home, how is that contribution quantified? If one partner took some time off to take care of the kids, freeing the other partner to focus on their career, how can you put a dollar value on that sacrifice? In Ontario, if you are trying to extricate yourself from a common law relationship, your separation will be governed by a patchwork of legislation and relatively esoteric common law principles. The Divorce Act will not apply to you but the Family Law Act will apply to you with regards to child support and spousal support. However, it will not grant you the right to equalize net family property or give you any rights to the family home if it is solely in your former partner's name. As a result, in order to determine what rights you might have to the family home, you will have to bring a claim in unjust enrichment or argue that your fam- ily contributions have established a constructive or resulting trust. If you want to make a claim for division of property accumulated during the relationship, good luck. The legal process, simply put, for common law cou- ples who are separating is far more complex than the process for couples who were married and separating. In family law, complication equals expense and delay. As a result, common law separation can be even more complicated and expensive than divorce. This added expense and uncertainty disproportionately affects vulnerable people who may not have the resources nec- essary to fully pursue their legal rights. They might not even be able to begin understanding what legal rights they have without the help of a lawyer. At the heart of the support provisions enacted by both the provincial and federal legislatures is the idea that marriage is a deeply intimate partnership where both parties contribute to the well-being of the family unit. If one spouse's contribution to the family leaves them in a vulnerable financial position after the dis- solution of that relationship, our legislature has recog- nized the value of their role within the family and acted to mitigate that vulnerability. Those contributions and vulnerabilities are as real and present in common law relationships as they are in marriage. When the Ontario legislature and Ontario courts deny common law couples the same rights and re- sponsibilities enjoyed (and sometimes resented) by the formerly wed, we're also denying them the protection and support of our communities. Breaking up is hard to do, but it doesn't have to come with an unnecessarily complex legal scheme. Manitoba and British Columbia have already shown that it doesn't have to be this way. It's time for the Ontario legislature to follow suit. LT uRobert Shawyer is a senior family law lawyer and advocate for family law justice reform. He can be contacted at robert@shawyerlaw.ca. u SPEAKER'S CORNER COMMENT A Criminal Mind Matthew Gourlay

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