Surveilling Chief Justice On COVID Compliance Merits Permanent Physical Ban From Manitoba Practice

Two lawyers who had placed a judicial officer under surveillance to monitor COVID masking compliance have been permanently enjoined from physically practicing in Manitoba by the Manitoba Law Society Discipline Hearing Panel.

Both actively practice in Alberta; one is inactive in British Columbia.

Carpay founded the Justice Centre for Constitutional Freedoms (the "JCCF") in 2010. At all material times:

(a)   Carpay was the President of the JCCF;

(b)   Cameron was its Director of Litigation; and,

(c)   both were employed by it in their capacities as lawyers.

The underlying matter

In 2020, the JCCF undertook to fund the Applicants in the Gateway case in a proceeding which challenged the constitutional validity of public health restrictions imposed by the government of Manitoba and, in particular, by its Provincial Health Officers, in response to the COVID-19 pandemic. The Applicants were three individuals and seven religious organizations; the Respondents included the provincial government and MIO of its senior Provincial Health Officers. Carpay assigned conduct of the matter to Cameron and two other lawyers whose conduct is not under review in these proceedings.

Surveillence

In early June, 2021, Carpay proceeded to hire a local private investigation firm to conduct passive covert surveillance of the then Premier of Manitoba and the Chief Provincial Health Officer with a view to obtaining information concerning their compliance with the public health orders which were then in place.

Carpay later explained (during court proceedings on July 12, 2021, described in more detail below) that the position of the JCCF on this issue was that "the public has a right to know whether or not government officials are complying with public health orders. [... ] We believe that the surveillance and observation of public officials is legitimate and legal."

The objects of scrutiny

In an email to the PI dated June 16, 2021, Carpay wrote: "l suggest you commence surveillance of Premier Pallister to catch him breaking rules, and further watch Chief Justice Glenn Joyal of the Manitoba Court of Queen's Bench." No other judges or justice system participants were placed under surveillance.

On June 28, 2021, Carpay received an email from the PI with an attached document reporting on the progress of the surveillance up to that time, The report (which was not in the materials provided to the Panel) indicated that Chief Justice Joyal had been observed riding in a car with an unidentified adult female and that neither was wearing a mask.

At a hearing in the case

On July 12, 2021, the Chief Justice Joyal convened a court hearing involving almost all of the counsel who had appeared on the Gateway matter (two being unavailable); all counsel, including Carpay and Cameron, attended by video. Several journalists and members of the public also attended in the same manner. What transpired during that hearing is set out in more detail below under the heading "Court Proceedings on July 12, 2021

A request by Cameron to go in camera was, after some discussion, granted by the Chief Justice. While in camera, Carpay revealed to the Court, for the first time, that he had retained the PI on behalf of JCCF in order to determine whether government officials were complying with public health orders; he stated that the surveillance had "nothing to do with the [still pending Gateway] litigation". Carpay stated further that the surveillance was not "targeted" at the Chief Justice.

During both the in camera session and the public session which followed, Cameron failed to comment or provide correction when Carpay asserted to the Court that the use of the information uncovered by the surveillance had "nothing to do with the litigation" and other comments to that effect.

While in camera, Cameron was asked directly whether he knew about the surveillance of the Chief Justice. He initially answered that he "had some inkling" but was "not privy to the.. instructions that were provided. I was not privy to the retainer."

Deletions after the hearing

While the wholesale purging (and subsequent recovery) of their JCCF Outlook accounts by both Carpay and Cameron may have been justified to shield their content from outside hackers, the directives from Cameron to the PI to "delete everything" that he had regarding the surveillance of the Chief Justice, including all correspondence between the agency and Carpay, and to refrain from telling the police who had hired him, cannot reasonably be seen as anything other than a deliberate attempt to conceal the misconduct from the police, the courts, and the regulators. If the intention of the surveillance had been simply to secure evidence that "public figures", such as the Premier and the Chief Medical Officer, were violating health orders, one would think that there would be no need to instruct the PI to "delete everything". If that were really the case, there would be no concern about disclosing to the police that the JCCF was involved as part of its mandate of keeping watch on the public behaviour of "public figures".

Sanction considerations

Judges must have no fear of being subjected to harassment or physical harm when they are sitting on controversial cases. These cases must be adjudicated in the environment of a fair and impartial judicial process, and society simply cannot tolerate having judges shying away from making unpopular (yet still necessary and legally sound) decisions because of concerns for their personal safety or the safety of those close to them. The harassment of one judge is a psychological threat to all judges, and cannot be tolerated in a free and democratic society.

It is not too strong a statement to say that judicial independence came under attack on June 8, 2021 when Carpay and Cameron first conspired to gather potentially embarrassing evidence on the private activities of one of the most high-profile members of the Manitoba judiciary, and then again on July 12, 2021 when they actively misled the court during a hearing when their misconduct first came under scrutiny.

But while the principle can be a fragile one, it is also resilient. In the end result, the justice system worked as intended, and the Gateway case was concluded in a manner which respected judicial independence and upheld the rule of law.

Sanction

The Panel orders that:

(a)   Carpay be permanently banned from engaging in the practice of law physically in Manitoba except with respect to the law of a home jurisdiction, or physically in any other jurisdiction with respect to the law of Manitoba, or providing legal services respecting federal jurisdiction in Manitoba;

(b)   Cameron be permanently banned from engaging in the practice of law physically in Manitoba except with respect to the law of a home jurisdiction, or physically in any other jurisdiction with respect to the law of Manitoba, or providing legal services respecting federal jurisdiction in Manitoba; and,

(c)   They each pay $5,000 as a contribution to the costs of the LSM investigation and prosecution of the charges.

(Mike Frisch)