Um, but my practice changed dramatically when John Felderhoff hired us in 1998. And so what I found was it was a tension with my partners and I. Just got increasingly uncomfortable and I think they were increasingly uncomfortable. Welcome back to speak to a lawyer. I'm your host Avi Charney. On this episode, we pick up right where we left off with the great legend plosive Roy Joe in this episode goes into the details of the cases against him, starting with groin versus the more society APA Canada in 2010. This several cases, which I'll post in the show notes, leading up to groin. The law society of upper Canada in 2018 at the Supreme court of Canada discusses these cases against them. What he's learned, what he's gained and ultimately his acquittal in the Supreme court. Really an unbelievable story. Uh, start by asking Joe, what, what really changed when you started representing mr. Felder hos? Well, because John Felder Hoff was a pariah. He was the person that base street was blaming for a 600. Billion dollar markets scandal. The story in the national post set. I was now a pariah on Bay street for green deck. Um, so you have to go back 20 odd years to understand the depths of the scandal and how the emotions were running wild. Um, I knew of four or five people who had committed suicide because they had been devastated financially by the collapse in the price of Bri X. And when you have it stocked, it goes from 20 cents to 220 priests split. And it goes back down to zero, a lot of fortunes made, but there are also a lot of them fortunes loss. So there was pressure on the securities commission to get a conviction and enormous pressure on. Me not to take the case. It was a huge controversy at the firm and to its credit, they eventually agreed they were going to do it, but I, I damaged severely some relationships I had with partners who felt that their relationships with their clients where it's going to suffer because. We were taking on someone who had essentially a reputation about as bad as Paul Bernardo's was at around the same time. So know it's unfortunate because everyone's entitled to fair representation. What happened to innocent until proven guilty? That's okay. So on the other hand, the Siri doesn't always play out in practice the way you hoped that it would. And so, you know, for mr. Felder, I acted too for him up to his desk last year. And one of my great regrets in my professional life is that although we got an absolute acquittal out of the charges against him, Uh, we were never able to get his career or reputation restored. And so he spent the last several years of his life, really in a very hard Scrabble existence. And yet here was one of the most talented exploration geologists. That anyone would ever meet the community had at least two deposits that he was credited with discovering a lot of geos go through their whole life. Never finding one. Well, interestingly enough, just last month I was sending an article that's. Going to appear in the leading American exploration, geology journal, talking about a recent review that was done of samples that dr. Milligan, who was the head of the geo department at Dalhousie had got on a visit to Bussa. He brought them home and they'd never been closely analyzed. And when they work closely analyzed to over the last year, the conclusions of the people were that they showed all of the signs that one would expect in a significant episomal deposit, except there was one thing that was missing. And of course there was no visible gold in the samples, but you know, the part of that case that I always found so distressing was that. Took on, I'm almost cartoon like character that the securities commission and their experts just said, things that were absolutely ludicrous. You know, there's no gold in the blue say, well, I mean, that's just absurd. Their own documents showed there was gold there. And. So why they would say there's no gold as opposed to yes. There's some goal, but not as much gold as had been predicted. I could never understand because if I had been directing that prosecution, there's no way I would have let the commission go out on that basis because all that. That's cross examination I will ever do in my life. Professional life was my cross examination of Graham Farquhar, who was the chief expert for the securities commission. And mr. Felder Hoff told me for years, he didn't care how the case played out as long as I destroyed mr. evidence. And so he came to Toronto for that cross examination and. I have to say it was a very good cross examination. I worked incredibly hard and by about the third day of it, the expert was deferring to my expertise on matters of exploration because he was, as he kept telling me, I'm just a mining engineer, mr. Groin. Well, mr. Farguson good to know that makes it very difficult for me to understand why you're giving expert evidence about exploration, geology, if you're just a mining engineer, but let's proceed. And, and we did, um, but you know, there was a, that was a cartoon. You have that problem. And I actually get asked, I teach a class about pre X and I get asked by students if I think I could've won, uh, that prosecution if be prosecuting it. And I always say the same thing that I think I could've won the geology prosecution. If they had handled it correctly. But the insider trading case against mr. Felder Hoff was never a righteous case. So it should never be brought. I had always told John that one day we were going to have to defend his exploration work, but when they charged him with insider trading, I thought they were kidding me because it was the stupidest set of charges. You could imagine. Well, so take us through your perspective for a second. I don't know if you know the name, Jacob Weinroth. He's one of the most famous lawyers in Israel in a good way. I real leading litigate. He represented, I think every prime minister in Israel and all the tycoons, and he passed away a few years. Um, but he became so powerful as a lawyer. That he liked your dog got charged with something trumped up and he landed up getting, getting acquitted at the end, after, uh, an extent battle. Um, and he describes it as the second worst call. You can get. The first being hearing about somebody's death and the second being the charges against you. Now, I know you weren't really caught off guard by the charges. You kind of knew about them in advance, but can you take us back to that moment of, you know, what was it like getting hearing about these charges against you? How did, how did you deal with that? Well, first of all, I wasn't surprised I knew that taking on John's defense involved, personal sacrifices, I didn't expect the is to be as acute as they eventually became. Took me, as I say, nine years to defend myself. Um, but I think the reality was that the prosecution by the securities commission against mr. Felder Hoff was not handled appropriately, in my opinion, until the second Brown. When they brought in new prosecutors who conducted themselves impeccably, they were decent, honorable people had difficulties, but they're the kind of difficulties you have in any high profile trial. But the first set of prosecutors, I found their conduct to be far below the standard that one would be expect. And what happened, I think in a very kind of cynical way was when they realized they were losing the trial. And that I was not going to let them, the prosecutor made the absolutely absurd suggestion that I just agreed to let all the dogs documents be filed as exhibits. And then we could argue about which is something that happens often in a civil case or that men case. But in my experience, it almost never happens in a criminal case. Um, and especially not in a criminal case where at the core of the allegations is that somebody committed a huge fraud. So why am I going to let all of the documents in on consent when I don't know who committed the fraud and how extensive it was? I repeatedly offered to sort of document by document. And I would say things like, well, you know, I'm not suggesting price Waterhouse Coopers was participating in this fraud. So if you want me to talk about agreeing to PWC documents going in on consent, I'm happy to do that. No, it's gotta be all or nothing. It's gotta be none. I mean, it's not, not a very smart choice. Anyway, we, we did not get along and it was very difficult trial and it was just at the beginning of the civility. That's what I've called it. I always remember Brian Greenspan, who. I had to hire to represent mr. Felder Hoff in the middle of the commission, brought a motion to have the judge recused for bias in front of her. Yeah, Archie Campbell at the first round, he said it was 80% about the judge's rulings and 20% about my alleged instability. And then one of the government lawyers, by the way, I, I was told it was professional misconduct to call a government lawyer or a government lawyer that I was being sarcastic and demeaning by using that term. Of course, as I had the point over repeatedly, the OSC liked to call itself the crown, but it's not the crown, it's not a crown attorney. They have no right to call themselves a crown. So they are a government lawyer or a government prosecutor, but they're not a crown attorney. And justice Campbell actually says that in his reasons. So in front of justice Campbell, a government lawyer stands up and this is two months after nine 11 and says to justice Campbell, right? I'm like a guy who's throws a bomb and to a crowded bus station and runs away. Essentially I'm a terrorist. Um, and he accused me of having made bald faced lies. So this all gets reported in the globe. Um, and it's a bit controversial justice Campbell. Doesn't like it very much. No, I, I knew because Brian told me that this was going to go badly for me. Um, and then after they lost in front of justice Campbell in the court of appeal, They flipped it all around. It was 80% about me and 20% about judge rim. And I came to realize that I was the consolation price so that if they couldn't get the judge removed, then maybe they could put so much pressure on me that I would think that I would have to resign. Which I was simply not prepared to do that sounds so frustrating. Can you put yourself in their shoes and try to understand what were they thinking, trying to get rid of council? What's the, what's the point of this whole? Yeah, I think they could not believe that I would be able to Mount an effective defense for mr. Felder Hoff. I think they always assume. He just got crushed, but under the weight of the, of the state and the prosecution and that I would come and try and make a deal to defend them. So when they saw that, not only was I going to defend the case, but I was going to defend it. In a very aggressive way. And to essentially put them on the defense. This was at the beginning of stingy home disclosure requirements and their disclosure was just terrible. They made no real effort in my opinion, to do proper disclosure. And I called them on it and I kept winning in front of judge rim. So I brought a disclosure motion and he gave me. Additional disclosure. And, uh, the only harsh criticism they kept saying, judge RRINDON, uh, control his courtroom and he wouldn't criticize anybody, but there were a number of instances where he criticized the prosecution. And in one case I think came relatively close to sync saying that they were in control. I mean, what do you say about government prosecutor who has their press agent on the opening day of trial? Stand on the courthouse steps and announced to the whole world that they're simply here to see you. Good conviction. If there's one thing you get taught in first year law school, that is not the role of a government prosecutor and. It was like, they were deliberately setting out to create an atmosphere where if, if they weren't successful in the prosecution, that somehow I would get blamed for that. And to some extent they succeeded in that. I believe one of things that I'm upset about is I believe that after John was acquitted, rather than having the mining community and Bay street say, well, that was not a good prosecution. And he deserved to be acquitted. I think most of the people on Bay street tended to say, Oh, well he was guilty, but he had some asshole lawyer who just terrorized the prosecution and got them off on a technicality. But you should go read judge rinse 600 page decision because we wasn't even a close. I mean, we established a solid due diligence defense. Essentially the court said that John ran a world class exploration project. Nobody could have detected this fraud at the time and in the circumstances and the insider trading case was just a stupid case from day one, but John never got his reputation back and, you know, he died. And never getting what he deserved, which was vindication for the very fine work he had done. And the fact that he was terribly let down by people that he, Oh, that's really sad. Not being able to mend your reputation. Um, you know, but you haven't been able to mend your reputation and you, you know, have fought a successful battle to do so. But your mentors at the beginning, you mentioned the 20, he does on Bay street, said you should settle and you shouldn't necessarily fight your battle. So. The question that comes to mind is how do you know when to listen to the advice of your mentors and when to disregard that advice as you did? Well, I think you do so carefully and cautiously most of the time, if everyone is telling you, you should go down the left side of the road and there are people, you know, and trust you. You need to be very careful before you don't take that advice. But I have a second, a second part of those discussions. And that is what I call the mirror test, because at the end of the day, when you look at yourself in the mirror in the morning, or at night, you have to like the person you see. And you have to be a sentence. And I think one of the challenges for young lawyers is to find their own sentic self, their own voice, their own set of values, their own commitment to professionalism. And I could not think about a future where I would look in the mirror in the morning and say, I admitted to doing something wrong that I didn't agree with. And worse the commission? Well, the law society said not only did I have to admit to doing something wrong and we can all admit that with the benefit of hindsight, we might've done something differently, but they wanted more than that. They wanted me to say that. Uh, it was all my fault that there was no, I was standing justice. Campbell had said there was no monopoly on incivility. In this case, that's in the law report. Los society absolutely refused for there to be any sense that anybody had done anything wrong, except me. And I just wouldn't accept that. And no matter how hard I tried to rationalize it, I knew I would spend the rest of my life regretting saying something that I knew to be untrue. And no matter how sensible it was, you know, that. Case on a conservative basis, costs me $10 million in term in terms of loss, business lost work time that I put into it. Earl cherniak who was a wonderful lawyer. Was, it was incredibly generous in the way he treated me throughout all of that. Um, but even with that generosity and I spent a lot of money in legal fees and, uh, but I realized, you know, I always thought as I went through it that the publicity and the notoriety would be bringing me work that would offset the work that I would lose. I was not even close after I got that acquittal, the work at this firm just exploded and we are busier now, even in COVID-19 times. And we were for those nine years. And so between that lost opportunity. Yeah. Look what I actually spent. I figure I'm out about. $10 million. Now I did settle the costs with the law society, and I did take some of that money and buy a tractor on which I put at deco. It says paid for by the law society, but the amount of money I settled for that didn't come anywhere close to the amount of money that I spent or lost in terms of opportunity. Notoriety, like you said, must've contributed a lot because if I'd want someone to defend me at someone who's really willing to go to bed, like you demonstrate, I guess that part of my reputation is always going to be secure. I'm not too worried about it. That's perhaps the most important thing. I'd certainly want that trait in a defense counsel. So I'm curious to know your view on professional ethics and civility in particular before perhaps going back to when you were a new lawyer or law students, how did you view ethics? And now after all your experience, how do you view ethics sensibility? So, when I graduated as a young lawyer, civility was not a topic of discussion. And civility only became a topic of discussion around the end of the 20th century. Why is that why that happened? Oh, we could spend another two hours talking about. And, and the effect of that on the profession is also I think, important. Um, but you know, when I went to law school in the seventies and practiced in the eighties and nineties, there were only, well, they'll give you this example at the time of the Bri X trial in the entire history of Canadian jurisprudence, there were only. Two or three cases that talked about civility as part of professional conduct. One was a lawyer in Hamilton who got fired, referred to his client in a strain of vial and he submitted. Comments that the, the former client tape recorded and he was prosecuted for incivility and he was given a reprimand. And then there was another lawyer who was defending his client and indigenous person. And he was so committed to the clients cause that he attempted to carry out a citizen's arrest of three judges as a BC court of appeal in open court, accusing them. I think of treason in general. Mmm. Gavin McKenzie wrote a long decision about. The danger of prosecuting people for incivility and that lawyer got a reprimand. So why I got a two months suspension for referring to a prosecutor as the government, or saying something as terrible as their promises are not worse. The transcript pages they're written on. I couldn't understand for me when I got that phone, I was not, as I said, surprise, the initial stages were seeing if there was a resolution, which we were unable to do. Um, and then the case started and I immediately started to see horrifying things about the law society prosecution. So for example, the investigation at the law society never happened. What they did was they read about me in the newspaper that caused them to write a letter, telling me they were watching money, uh, until the end of the trial. And when the trial was over and we won and I wrote to them and said, okay, I'd like to deal with any remaining concerns you have. What I discovered was they didn't interview anybody who was involved in the first part of the trial. They had a brief interview with one of the good prosecutors in the second part of the trial, but they didn't the transcripts of the trial. So what they got were the losses, the loss society got the securities commissions factums from the court. And. Read the fact thems and read the decisions of justice, Campbell and Rosenberg, and essentially took the view that I had already been found guilty of professional misconduct and that the whole prosecution and got the hearing the law society was predicated on the notion that. I was not allowed to defend myself that there was already a finding against me. And so there's a series of letters that I wrote. And then Earl road saying there's been no finding, there's been no investigation. If you want to talk about what happened, let's do that. But for you to say that because I was criticized. By the judges, as I was defending, mr. Felder hall is somehow binding. It's just, it's ridiculous. But in fact, not only did they alleged that the hearing actually convicted me and said my whole attempt to defend myself was an abusive process that I had. Engaged in a waste of their time, because I'd already been found essentially guilty by the court of appeal. So I want to ask, was there a sense of betrayal at all? I mean, this is the law society. They're our governing body. They're there to protect us. And now they're just putting a trigger, putting the trigger on accusing you and making these accusations without even doing a proper investigation. Did you feel betrayed at all? I'm not sure. I would agree with the word betrayed. I as a former prosecutor and as a head of enforcement at the securities commission, the most important thing you want from your prosecution group are prosecutions that bring credit on the organization. So, you know, when I was the head of the compensation fund and we would pay the money on behalf of a client who had been cheated by a crooked lawyer, that was a lawyer I wanted to see prosecuted and frankly sent to jail and bankrupted. If, if the allegation was true, those are prosecutions that every member of the bar agrees with him support and they are what make. Enforcement programs effective and credible. You get the trust and the loyalty of your membership. When they know that going after lawyers who need to be prosecuted because they're crooks. The prosecution, my case was just badly misguided. I think the law society had no idea how much damage they would do to their own credibility. And I think they had no way of getting out of it once they had gotten started. And I think they expected to win. And certainly, you know, when we went to Ottawa and the score was 18 to one, I was not expecting to win. But by that point, I already went because I had spent eight or nine years talking about this problem, writing papers about the perils of service. He was talking to thousands, literally thousands of students and lawyers all across the country. Why I support and endorse the importance of civility, but why I was so determined to fight back against the civility movement. Civility, as part of persuasion is incredibly important to be a good advocate. You need almost always to be civil. And I was definitely civil towards the judge. And that if you read any of the decision, you'll see that in the, in the court material. But I don't know how you can be civil when you're dealing with a prosecutor that you think is violating his ethical responsibilities. I don't know how we benefit. If you have a witness in the witness box, who's telling a lie. I don't think there's any advantage in the legal system by saying to that person, anything other than you're a liar saying, you know, that's true to me is substantively the same. And so when you have as happened, in my case, The law society wanting to sensor the way courtroom language is used in a case where I was never criticized by the trial judge and, and in a case where my language, you know, when I, when I go around teaching a class about it, almost always a student would come up to me and say, you know, mr. Gray, when did we get to the part where you tell the prosecutor to F off. I'd say, well, I'd never happened. So what I did was I had a bunch of slides where I mixed it and matched things that I said with things the prosecutor said, but I wouldn't tell the students, which was which, and so we would go through them. We talk about each one of them and almost always, I ended up winning so to speak because my language, by comparison to what they said, W was pretty mild. You know, when I, when I betrayal, I don't really think in those terms, but I do feel incredibly hard done by the fact that I was the only person who was prosecuted and the other people who were on the prosecution team. As best I can tell. In fact, not only didn't get prosecuted, but one of them got hired to work for the law society. And another case that went very badly. There's a Tori's Holland juror case. Um, so, you know, there definitely was a double standard McDonald Bain, terrific criminal lawyer in Ottawa wrote a paper. In the middle of that process, where he talked about how a defense lawyer is eight times more likely to be cited for incivility than a prosecutor is certainly that was my experience. Wow. Okay. Thanks for that. So I know we've been, but over time over here, I'll just ask one or two more quick questions. Um, just to wrap us up over here. One is, you know, throughout such a long successful career with, I would say, upheavals, what is your key to longevity and having that long successful career like you ever had it? Yeah. Let me give you three. Pieces of advice. And when I talk to young lawyers or students, this is the same advice I give them. The first thing is that the qualities that one meet, we all come into this profession with a certain amount of talent. Some of us are smarter than others. In my case, I'm at the low end of that discussion. Me too. Um, so you can't change your innate talent base, but what you can do is to pursue what terrific writer named Angela Duckworth calls, grit. And grit is a combination of passion and perseverance. And the people who are the most successful in life are not the ones who are the most talented. And she writes about lots of these examples, but they're the people who can. Turn their passion into a energy force that takes them in a good direction. And their perseverance is their willingness to stick to it when, when things don't go. Right. So I think, yeah, that for a young lawyer, when you come into the practice of law or you want to have. Have good experience with the grit phenomenon and you want to be using both your passion and your perseverance skills is at the end of the day. As Joe Montana, famous quarterback said success is 95% just showing up, ready to play the game. Um, so that's the first thing. Secondly, uh, I really do encourage young lawyers to decide if this is the right career for them, never had any doubts in my mind, I couldn't and to found a better profession, but I have talked to lots of young lawyers, especially who get into the practice of law and discover it's not. Right for them. And yet some of them try and stick it out and become incredibly unhappy. It damages their house. It damages their relationships. No. A law degree would take you to lots of things. So you try the private practice of law and you don't have the same sense of satisfaction that I get even today. Then do something different. Don't, don't try to force yourself to be miserable every day. Um, find some other way to use your skillset and to use the, the law degree and the experiences that you acquire and, you know, go in house or, or go into capital markets or just do something different. Um, and then lastly, you know, I really think that part of practicing law for me is the sense of commitment to a client's costs, the satisfaction you get and the responsibility you get from somebody who's in a lot of trouble saying, I trust you Joe, to try and get me out of the mess site, man. And there's a lot of stress that goes along with that. But the awards that come from not letting that client down or getting that person a result, they feel indicates their physician is the best feeling you can happen. Of course, the agony of defeat goes along with that. And when you get a result that you feel. It doesn't come anywhere close to what the client should have gotten as I call it a substantively. Correct. And procedurally fair result. That's incredibly hard to deal with and you have to learn to deal with losing. Uh, early on and losing often in your career, but the rewards that come along, when I think about the satisfactions in my life, a lot of them were in chases that never made the newspapers, but you're right. Ultimately for me reacts and it's aftermath with the law society, which occupied 20 years of my professional life. And ended up in both cases with mr. Felder, Hoff winning and then me winning. Um, I, I'm going to go to the end of my career, really having the benefit of that being in my stable of cases. Um, and one of the things I worry about today is, you know, will I get another case that comes anywhere near. To breathe. That will give me the same kind of professional satisfaction. I, luckily we have lots of great cases, lots of great clients and things are in this COVID-19 time. We've been blessed with a lot of opportunities that I'm so grateful for, but reacts is a different world, you know, a different level of intrigue. Um, people being pushed out a helicopter doctors, or as I believe mr. Guzman is alive and well and living in the Philippines somewhere, that's not a case that you get to come along very often, but I'm going to hang in there for as long as my health lets me hope. Anything. Hoping that there'll be something that's even half as good as that one. That's a great attitude. You have to really be hopeful about the future. Uh, I'll ask one more question. Cause again, we're going very overtime. Yeah. Is there any quote or anything you live by? Let's say you get another tractor is anything you want to stick on that tractor as a, as a favorite saying. Actually you look over there. You'll see a little, little grass. Don't let the bastards grind you down. That's it. That's beautiful. You go, you've got to be tough. Good talking to you. Thank you very much for your time. Take care. Thank you for making it to the end of speak to a lawyer with me, your host Ali Charney. In this episode, we had drove groin, a real legend on Bay street. If you want to reach me, I'm at Charneylegal.ca. The home of this podcast. I look forward to seeing you on the next one. Bye for now.