Lawyers are not their clients

Manitoba Premier Wab Kinew's decision to boot a backbencher from caucus because of his association with a criminal defence lawyer in a high-profile case is “deeply troubling and irresponsible.”

Canadian Bar Association President Lynne Vicars says criminal defence lawyers play a crucial role in the justice system, as the right to legal representation for every individual facing criminal charges is a fundamental principle within a democratic society.

“Decisions like these cast doubt on the critical role of defence counsel and demonstrate a clear lack of understanding of the fundamental principles underlying our democracy,” she said in a statement.

“Such irresponsible decisions ultimately undermine public trust in the system.”

Vicars said Canadians deserve better from elected officials.

“(They) must educate themselves on how a functioning democracy works and not take actions that cast doubt on the essential services defence counsel provide.”

Earlier this month, Manitoba's governing NDP ousted MLA Mark Wasyliw from the party ranks upon learning that a partner at the law firm where he still practices represents former fashion designer Peter Nygard, who was recently convicted on multiple counts of sexual assault.

“MLA Wasyliw’s failure to demonstrate good judgment does not align with our caucus principles of mutual respect and trust,” the party said in a statement.

“As such, MLA Wasyliw can no longer continue his role in our caucus.”

While the political consensus appears to be that the excuse was merely a fig leaf—Wasyliw has been combative and openly criticized Kinew when he was not appointed to cabinet last year—it remains the official reason for the ouster.

Legal groups have been quick to respond because of what it says about the right to counsel, the administration of justice by the provincial government, and access to justice.

When reporters asked about the concerns raised by his decision and his rationale, Kinew stood firm, insisting Wasyliw’s choice “doesn’t align with our values.” 

“You have a right to a defence attorney. You do not have a right to be defended by an MLA,” he said.

“Our team has asked (Wasyliw) to make a choice: do you want to be a defence attorney or do you want to be an MLA?”

Jessica Schofield, president of the Manitoba Bar Association, says Kinew’s decision to double down demonstrates a lack of understanding about the administration of justice by the provincial government.

“We’re not advocating for Mr. Wasyliw, but the fact of the matter is that Mr. Wasyliw is an associate in a law firm and has no control whatsoever over what his partner does or what files his partner takes, and she is doing a job—a job that is mandated by the constitution."

Schofield says proper access to justice requires an understanding of how the system is supposed to work, given that this is explicitly a provincial responsibility.

Michael Davies, a partner at Davies McMahon LLP in Ottawa and secretary for the Criminal Lawyers Association, says the Manitoba NDP’s approach here is “incomprehensible.”

“They seem to reject the idea that everybody in Canada is entitled to a proper defence by a competent criminal defence lawyer, and they also seem to criticize people who even associate with defence lawyers,” he says.

“It seems like it’s a rejection of our entire criminal justice system and a rejection of the presumption of innocence. It's a very strange position for a democratic party to take.”

Davies is also puzzled by the province’s attorney general remaining silent on the issue.

“I’m trying to imagine how the Manitoba government imagines its criminal justice system proceeding. Do they want everyone to be representing themselves? Are people just going to be informed by the police to show up at the local penitentiary, and that’s that?"

He adds: “It seems to me they have to explain their view and vision of how a criminal justice system should work if it doesn’t involve defence lawyers.”

Seine River MLA Billie Cross told the Winnipeg Free Press that as a woman in caucus, “It’s extremely hard to support a colleague who might benefit financially from representing a sexual predator.”

She continued: “…It’s not okay for a member of our team to represent someone like that when our job as MLAs is to represent Manitobans and, as a woman, I represent women.”

Schofield says it’s a “pretty concerning narrative” when someone believes we can’t have criminal defence lawyers because they’re acting contrary to women’s interests.

“The MBA is not here to criticize government,” she says.

“But as an organization, we really have to make sure that people understand the importance of lawyers in the administration of justice.”

Kyla Lee of Acumen Law Corporation in Vancouver and chair of the CBA’s criminal justice section, says Cross' and Kinew's comments undermine the system by signalling that a criminal defence lawyer is the same type of person as their client.

“The state is telling the public that it is just as reprehensible to represent a client charged with a horrific act as it is to be the person charged with a horrific act,” she says.

While that’s “entirely untrue,” Lee says this could have a chilling effect on younger lawyers or those with political aspirations, who may perceive that joining the defence bar and representing criminal offenders will close doors on future opportunities.

Davies agrees that anyone in the defence bar with political ambitions has taken heed of this incident.

“You can imagine the sort of Americanization of Canadian politics if this idea is allowed to take hold, where anybody from the defence bar running for office is going to be faced with ‘you represented people who committed these types of offences,’” he says.

Unfortunately, this comes at a time of high attrition from the criminal defence bar to the Crown and other areas of private practice.

“It is already very inhospitable to be a criminal defence lawyer in Canada,” Lee says of the demands and expectations in a post-COVID and post-Jordan world, which brings added work that’s not compensated and has lawyers scheduling trials back-to-back for fear of a Jordan application that could get a case tossed.

“It’s a 24-hour job, and it’s hard enough to do the job without having to worry that the leader of your province is saying that because you do that job, you are a bad person.”

This situation could also signal to an accused that perhaps hiring a lawyer is not the best option to protect them from a wrongful conviction.

“As a layperson, you might hear those comments and think that if the premier doesn’t like defence lawyers, I’ll bet judges don’t like defence lawyers either, so I better represent myself,” Lee says.

Davies says an increase in self-represented defendants would slow down the system considerably. Self-represented trials take significantly longer and are more likely to result in miscarriages of justice, leading to more appeals.

Lee agrees.

“The worst thing we can have is a self-represented person, especially in a complex criminal trial,” she says.