Like all counsel, criminal defence lawyers are bound by the duty of civility, and may be disciplined if their uncivil behaviour crosses the line into professional misconduct. Yet lawyers are also required to fearlessly advocate on behalf of clients, even when this involves making unpopular and distasteful, but reasonably available submissions. In the criminal defence context, the duty of resolute advocacy is especially important given the Charter-protected right of accused persons to make full answer and defence.

The defence lawyer is therefore in the difficult position of being required to make every reasonably available argument, including allegations of prosecutorial misconduct, yet of facing potential disciplinary action if those submissions are subsequently determined to have been unwarranted.

In Groia v. Law Society of Upper Canada, 2018 SCC 27, the Supreme Court of Canada (“Court”) addressed the circumstances in which unfounded allegations of prosecutorial misconduct made during a criminal proceeding will cross the line into professional misconduct on the basis of incivility.

In the majority decision, Justice Moldaver emphasized the importance of civility to the justice system. Incivility undermines trial fairness and the administration of justice, and can damage the client’s interests. At the same time, the lawyer’s duty of resolute advocacy must not be sacrificed. In addition to the value of giving effect to accused persons’ rights, defence lawyers provide a valuable service to the administration of justice when they expose state misconduct. They should be free to seek to do so without undue fear of reprisals if they turn out to have been mistaken.

Rather than formulate a rigid test, the Court approved of the flexible context-specific approach developed by the Law Society Appeal Panel, along with its description of relevant factors, including: what the lawyer said in raising the issue, the frequency, manner, and tone of the comments, the trial judge’s reaction when the issue was raised, and the extent to which the lawyer modified the behaviour if the trial judge intervened.

Regarding what the lawyer said, the Court held that it was reasonable for the Appeal Panel to have required that allegations of prosecutorial misconduct be made in good faith and have a reasonable basis. The Court rejected the argument that good faith alone should be sufficient. Given the damage that unfounded allegations can have on opposing counsel, they should not be made lightly.

Justice Moldaver clarified, however, that erroneous allegations will not be deemed to have lacked a reasonable basis if they resulted from legal error. In fact, good faith legal errors may lend support to a “reasonable basis” finding if there was a reasonable factual basis for the allegation, viewed in the context of the lawyer’s sincerely held but mistaken understanding of the law.

This does not mean that legal error cannot support a professional misconduct finding. Depending on how egregious the apparent error was, it may provide evidence of an absence of good faith, or it may suggest a lack of competence, which could warrant disciplinary action on that basis.

With respect to the other factors, the majority noted that a single outburst (as opposed to repeated attacks) will not usually amount to professional misconduct. The manner and tone of the attacks, as well as any provocation are also relevant. The realities of a hard-fought high-stakes trial must be borne in mind: emotions can sometimes overcome advocates who are usually even-tempered. Strong language necessary to legitimately raise the issue of prosecutorial misconduct should not be conflated with incivility.

Finally, the trial judge’s reaction should be considered (with caution since a trial has a different purpose than a disciplinary proceeding and conduct found to be improper by a trial judge will not necessarily amount to professional misconduct) as well as the lawyer’s response to any corrective directions.