Anonymous complaint of ‘backroom political lobbying’ against top Manitoba judges dismissed

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This article was published 08/06/2017 (3029 days ago), so information in it may no longer be current.

The Canadian Judicial Council has spent the past several months investigating Manitoba’s top judges over their controversial proposal to speed up the justice system by eliminating preliminary hearings, the Free Press has learned.

An anonymous complaint sent by a self-proclaimed “practising lawyer” in late February accused Court of Appeal Chief Justice Richard Chartier, Court of Queen’s Bench Chief Justice Glenn Joyal and provincial court Chief Judge Margaret Wiebe of improper conduct by formulating a plan in conjunction with provincial Justice Minister Heather Stefanson, which seeks to improve efficiency in order to comply with tough new Supreme Court timelines that puts cases in peril if they take too long. 

Ultimately, no wrongdoing was found against the justices named.

However, the proposal was made without any notice to, or consultation with, other stakeholders including members of the defence bar and the public. The idea for a four-year pilot project was then forwarded to federal Justice Minister Jody Wilson-Raybould and remains under consideration.

“This causes these judges to at least appear to have become involved in backroom political lobbying,” the initial five-page complaint to the CJC reads. A copy was obtained Wednesday by the Free Press. The author cites anonymity out of concern for the “professional impact of attaching my name to a complaint about three eminent members of the Manitoba judiciary.” The complaint was sent through a generic email account.

“I believe there are still important ethical limits to chief judges’ ability to advocate for changes to the Criminal Code, particularly when they do so in secret or in conjunction with another level of government such as the provincial Crown,” the lawyer wrote, noting the prosecutions department falls under the watch of Manitoba’s attorney general. “This proposal would have far-reaching consequences for the administration of criminal justice in Canada, and could eliminate an important and longstanding procedural protection for individuals accused of serious crimes. To this extent, it seems obvious that the proposal would favour the interests of the provincial Crown over the interests of the accused.”

Full text: The Complaint

The CJC governs the conduct of all federal judges in Canada and has the mandate to impose sanctions, from a reprimand all the way to removal from the bench. It immediately launched a probe of both Chartier and Joyal, assigning the matter to Nova Scotia Chief Justice Michael MacDonald for review. The complaint against Wiebe doesn’t fall under the CJC’s jurisdiction and was assigned to Manitoba Court of Queen’s Bench Associate Chief Justice Shane Perlmutter. Normally, Joyal would be the one to handle it, but he recused himself for obvious reasons.

The Free Press has obtained copies of both MacDonald’s and Perlmutter’s decisions, which are set to be released today. In both cases, no wrongdoing has been found against Chartier, Joyal and Wiebe and the files will be closed with no further action.

“This really represents, for us, a potential chill on our capacity. A chill, quite frankly, on any chief justice to be able to do his or her job,” Joyal told the Free Press Wednesday in an exclusive interview. “It’s regrettable somebody, somewhere, felt it necessary to conflate disagreement, which is fair, with an ethical issue. That’s not fair. We wouldn’t do that to anybody and wouldn’t expect anybody to do that to us.”

MacDonald found Chartier and Joyal “did not fail to uphold the principle of judicial independence” by entering into talks with Stefanson and requesting an audience with Wilson-Raybould. Perlmutter’s decision was much shorter, saying he adopts “fully and wholeheartedly” the findings of MacDonald and applies them in his decision.

“The issue you raise concerns a proposal, which is by definition eventually meant to be discussed and considered by others, rather than a definitive draft,” MacDonald wrote, adding Chartier and Joyal had been publicly discussing their views on eliminating preliminary hearings as far back as 2014.

Complaint dismissed

“There was nothing hidden about what our views were with respect to this matter,” Chartier told the Free Press. “We’ve been very very public with respect to our views on this matter. There’s no merit at all to that.”

The lawyer who filed the complaint was also concerned Chartier and Joyal could one day be in a position of having to appoint judges to oversee constitutional challenges of the very proposal they came up with, which would put them in a conflict-of-interest.

“This hypothetical issue could readily be addressed by way of a recusal if necessary,” MacDonald concluded.

The lawyer who filed the complaint also took issue with comments made by Joyal earlier this year, to the Globe and Mail newspaper, in which he stated defence lawyers weren’t consulted because “doing so would inevitably result in failure to achieve consensus.”

In his complaint, the lawyer called Joyal’s comments “frankly rather disdainful” while also questioning the perception of impartiality they create.

“Chief Justice MacDonald finds that Chief Justice Joyal’s comments were not disdainful as you allege, but rather reflect the controversial nature of the issue addressed in the proposal and explain why it was addressed the way it was, with all stakeholders’ input being considered later in the process to eventually obtain as close to a general agreement as possible,” the CJC decision reads.

The CJC says it also took an additional step of obtaining outside counsel — Toronto lawyer Gavin MacKenzie — to review the file and MacDonald’s findings. MacKenzie was in “complete agreement” with the findings, according to the CJC.

“In disposing of the complaint, Chief Justice MacDonald notes that ongoing dialogue between the judiciary and the executive is necessary to improve the administration of justice,” CJC executive director Norman Sabourin said in a statement. “While the idea of eliminating preliminary inquiries is not universally supported, it is worthy of debate by all participants in the justice system. Chief Justices Chartier and Joyal can be commended for their efforts at encouraging such a debate.”

Full text: Letter to Anonymous 

 

Timeline

Summer 2016 — The Supreme Court of Canada sets new time limits for criminal matters to make their way through the justice systems across the country. Provincial court matters must now be completed within 18 months after charges are laid. Superior court cases — Court of Queen’s Bench in Manitoba — have a 30-month limit. Cases that take longer are now presumed to have violated an accused person’s right to a trial in reasonable time unless the Crown can prove exceptional circumstances. Several legal challenges follow, which includes multiple criminal cases being thrown out of court as a result of judicial delay.

February 23-24, 2017 — Several media outlets, including the Winnipeg Free Press, pick up the story about a call to eliminate preliminary hearings as part of a four-year pilot project mean to speed up the justice system and comply with the Supreme Court’s timelines. Manitoba’s three top judges — Court of Appeal Chief Justice Richard Chartier, Court of Queen’s Bench Chief Justice Glenn Joyal and provincial court Chief Judge Margaret Wiebe — reveal they have consulted with provincial Justice Minister Heather Stefanson on the issue. Together, they forwarded a proposal to federal Justice Minister Jody Wilson-Raybould.

February 25 — The anonymous practicing lawyer files an email complaint to the Canadian Judicial Council against Chartier, Joyal and Wiebe, alleging judicial impropriety.

March 17 — The Canadian Bar Association’s criminal justice section sends a letter to Wilson-Raybould, urging her to reject the call from the Manitoba top judges to eliminate preliminary hearings. They propose alternative suggestions to reduce delays, including appointing additional judges, providing more legal aid, eliminating mandatory sentencing and using alternatives to court to deal with minor charges. They cite value in preliminary hearings, including reducing the potential of wrongful convictions.

June 1 — The Canadian Judicial Council sends an email response to the anonymous practicing lawyer, stating the findings of their investigation and that the file will be closed.

June 8 — Details of the complaint, investigation and findings appear exclusively in the Winnipeg Free Press and are set to be released publicly later in the day.