Charges offer reminder of basic legal principles By: Editorial Posted: 7:00 PM CST Tuesday, Jan. 3, 2023 Last Modified: 8:27 PM CST Tuesday, Jan. 3, 2023 Updates

Opinion

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This article was published 02/01/2023 (721 days ago), so information in it may no longer be current.

Canadians have every reason to expect lawyers — those engaged in the practice of law — know with a high degree of certainty where the line between lawfulness and lawlessness lies.

How, then, can one explain the “shock” expressed by lawyer John Carpay, founder of the Calgary-based Justice Centre for Constitutional Freedoms (JCCF), when he learned his ill-advised plan to have a private investigator track a Manitoba judge resulted in criminal charges?

Last year, Court of Queen’s Bench Chief Justice Glenn Joyal revealed a private investigator hired by Mr. Carpay had been following him and two other high-ranking public officials — premier Brian Pallister and chief public health officer Dr. Brent Roussin — to see if they were personally adhering to pandemic-era public-health orders.

The revelation was particularly concerning with regard to Justice Joyal, who was presiding over a court challenge of those health orders brought by Mr. Carpay’s organization.

The revelation prompted a complaint by Manitoba’s attorney general to the Law Society of Manitoba and a police investigation. It culminated in a series of very serious professional charges and, now, criminal charges.

Legal experts have warned proving beyond a reasonable doubt Mr. Carpay’s intention was to obstruct justice or intimidate a sitting judge will be difficult. However, based on available details, it is very difficult to imagine what other purpose he could have had in hiring an investigator to surveil public officials.

When he tasked his investigators, Mr. Carpay was no doubt banking on the contravention of public-health restrictions by any high-ranking public official — judge, politician, senior health official — amounting to professional suicide. Public officials caught flying to sun vacations in contravention of travel restrictions or hosting social gatherings involving large numbers of people in defiance of prescribed limits were subject to public scorn and, in some instances, removal from their jobs.

Last year, when Justice Joyal revealed the plot to have him followed, he clearly interpreted it as an attempt to “gather information intended to embarrass … and perhaps even attempt to influence or shape a legal outcome.” Mr. Carpay, who later apologized for his decision, has denied that was his intention.

He has, however, failed to explain what other purpose he had, or what he would have done if his investigators had caught any of the targeted officials in a compromising situation.

Legal experts say it’s rare for lawyers to face criminal charges for behaviour in the commission of their duties. That may be, but it does not mean such charges cannot be warranted. There is a strong argument that criminal charges might, at the very least, remind the JCCF about some important facets of Canadian law.

The centre espouses a libertarian world view that largely dismisses the viability of laws its members believe infringe on individual liberties. However, the foundation of its legal arguments — including a rather tortured interpretation of “liberties” — is out of step with existing law.

Citizens in a democracy, libertarian or not, do not have the right to do whatever they want, wherever they want, whenever they want, with no regard for how it affects other people. That is an unambiguous legal principle the JCCF seems unwilling, or unable, to comprehend.

And while Canada does allow organizations such as the JCCF to float their tenuous legal arguments in court, the laws of this country do not permit them to manipulate or intimidate those involved in hearing those arguments.

Whether Mr. Carpay will be convicted on these charges remains to be seen; one can only hope that in preparation of his defence, he reacquaints himself with some fundamental Canadian legal principles. That alone might justify the decision to lay the charges.