A news story has emerged from the Manitoba courts that has shocked lawyers across Canada. It seems like it came straight out of an episode of Suits.
In Manitoba, a group of rural churches are currently challenging COVID-19 public-health measures. The Manitoba churches are represented by a Calgary-based public-interest group called the Justice Centre for Constitutional Freedoms. Their case is before the chief justice.
During a hearing on Monday, the chief justice revealed that he has personally been the subject of surveillance. He said this was an attempt to embarrass him by catching him breaking COVID-19 safety measures.
According to the judge, a private investigator followed him in his vehicle as he left court last week. In addition, an investigator followed him home and located his cottage. He added that the investigator had a boy ring the doorbell to confirm his private residence.
After this announcement, one of the lawyers representing the churches, the president of the JCCF organization, owned up to it. The lawyer admitted to hiring that private investigator as part of a larger plan to catch high-profile officials breaking public-health measures. He admitted it was an error in judgment and apologized to the chief justice.
The lawyer later followed up with a written statement, saying that he alone at JCCF requested the surveillance of the judge and it was not discussed with others at the JCCF. The lawyer also stated that the surveillance was not intended to influence the case itself.
Spying on a judge is jaw-dropping on so many levels. This is just not done. It seems too far-fetched to even think of surveillance on a judge—let alone the judge presiding over your client’s case.
On a basic level, there raises a real concern for the safety and privacy of judges. Tracking down a judge’s private residence and conducting surveillance risks putting them in harm’s way, particularly in high-profile cases. It might be something you expect in a part of the world where the rule of law is on shaky ground, but not here.
There is also a concern that goes beyond any one judge. It goes to the integrity of our justice system and to the rule of law. At a fundamental level, cases must be decided by a judge (or jury) on its merits and not on any judge or juror’s personal views or political opinions. Politics have no place inside the courtroom.
To keep the court system independent, it’s crucial to protect judges and jurors from bias or influence outside of the courts. For that reason, lawyers are forbidden from communicating directly with jurors. Communicating with judges is limited to formal hearings in all but exceptional circumstances.
An independent court system requires judges to be impartial. It is critical that this impartiality exists in the public’s eyes as well. Even the perception of bias would hurt public confidence in our justice system. This is why judges, typically, shy away from media. You don’t see our judges broadcasting their political opinions or defending their decisions on previous cases. They don’t take on a very public profile.
Spying on Manitoba’s chief justice pushed the judge out of the courtroom and into the political spotlight. It improperly put his personal life under scrutiny and jeopardized his and the courts’ integrity as impartial decision makers. The lawyer who ordered the surveillance crossed a line from legal advocacy and into politicking. In doing so, he risked putting the administration of justice into disrepute.
This news story begs some troubling questions: what would have happened if the investigator “caught” the judge breaking a COVID-19 rule anyway? What would the lawyer have done with that? How would that affect the outcome of the case or the public perception of it? And what would all that say about the justice system as a whole?
This news story is still unfolding, and it’s not clear how the dust will settle. One day after this all came out, the lawyer went on indefinite leave. The Canadian Bar Association and Manitoba Bar Association have already condemned the actions. Even the JCCF, stating that their other lawyers and board members did not know about it, condemned the surveillance. The Alberta and Manitoba law societies have opened investigations into some of the JCCF lawyers in response to filed complaints of professional misconduct. And as for the lawsuit, the chief justice will remain on the case and his decision is expected in a matter of weeks.
Whatever happens, this has been a startling reminder not to take our justice system for granted. Its independence matters to all of us.
The author’s opinions of this case are based on news reporting and not on any firsthand knowledge or from any personal involvement.
A word of caution: you should not act or rely on the information in this column. It is not legal advice. To ensure your interests are protected, retain or consult a lawyer.