There are risks associated with having a criminal defence lawyer on the government backbenches, says a law professor who co-authored a paper triggered by Fort Garry MLA Mark Wasyliw’s situation.
“He was definitely the inspiration for this,” said Brandon Trask, an assistant law professor at the University of Manitoba. His peer-reviewed “Role Call: Can a Backbench Legislator Practice as a Criminal Defence Lawyer? A Legal Ethics Analysis” appeared in the Manitoba Law Journal online before the NDP announced Monday it was dumping Wasyliw from its caucus.
Trask said NDP caucus chair Mike Moyes’ statement that day explaining that the lawyer was getting the boot because of his association with the lawyer for convicted sex offender Peter Nygard is “problematic” and “unfortunate.”
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Brandon Trask, an assistant law professor at the University of Manitoba.
“There’s the perception… that the government gets to dictate who is entitled to a defence and who is not — that is problematic,” Trask said in an interview.
The NDP statement was condemned by legal bodies in Manitoba and other provinces.
“I agree with the general consensus and media commentary from folks in the legal field that the comments Mike Moyes provided immediately after Mark Wasyliw was removed from caucus were very unfortunate,” Trask said.
“I think this is a much more complicated and nuanced issue than Mike Moyes’ comments,” said the academic, who outlined its potential pitfalls.
“It’s awkward to have a foot in both worlds — to be both a lawmaker on the government side and somebody potentially responsible for challenging those laws on the defence side in court,” Trask said.
He and co-author Andrew Flavelle Martin, an assistant law professor at Dalhousie University, delved into the matter late last year after the NDP formed government.
On the day members were sworn in, Wasyliw — who had been told by caucus to wind down his legal practice — said he would take on clients again after he was overlooked for a cabinet post. The backbencher continued his practice.
“We saw an opportunity to make a novel submission in this unique area,” Trask said. “It’s possible this situation has arisen at some point in Canada’s history, but we weren’t able to find another specific example of exactly this.”
One of the issues they raised is that MLA and defence lawyer are both demanding jobs.
“A lawyer may not have sufficient time to put in all of the work required to properly represent people in court,” Trask said.
The Manitoba Law Society said under its code of professional conduct, every lawyer has a duty “to ensure that any outside interests, including other professions, businesses or occupations, do not jeopardize the lawyer’s professional integrity, independence, or competence.”
In a statement Friday, it said “all lawyers, regardless of their practice area or outside interests, must engage in appropriate time management to ensure that they are spending sufficient time on their legal files so that clients are well-served.”
Trask said there are also risks of potential or perceived conflicts of interest.
“What if a criminal defence lawyer had to challenge the constitutionality of a law that they or their party were involved in passing? What if they had to challenge the credibility of a police officer or expert witness?”
Wasyliw, he said, was the legislative assistant to the education minister. “There’s always the potential that someone in a position like that could have access to sensitive information about government priorities,” he said.
“If the government was trying to set up a crackdown on impaired drivers — having some discussion about working with MPI or law enforcement — that would put somebody who was sitting in on government meetings, while also representing people who may end up charged in that crackdown, in a potential conflict.”
What if the government was eyeing ways to improve police transparency and accountability, he asked.
“If you’ve got an individual at the table who is representing a police office charged with some misconduct, where would their loyalties lie?”
The law society said all lawyers have a duty not to act or continue to act for a client when there is a conflict of interest, including those that may arise from a lawyer taking on another role or occupation.
“Actual or perceived conflicts may arise for all kinds of reasons in an adversarial justice system.” They’re to use their professional judgment and avoid them, it said.
Trask said lawyers also have a duty to encourage respect for the administration of justice.
“How might the public reasonably react to the possibility that a government backbencher could be seen as exerting inappropriate influence over Crown prosecutors they’re dealing with on cases, or that Crown prosecutors could potentially be seen as giving more lenient treatment to that lawyer’s clients because of that connection to government?”
He encourages all law societies to consider adopting a blanket prohibition on government backbenchers from practising criminal defence law.
When asked if Manitoba should prohibit government backbenchers from also working as criminal defence lawyers, Premier Wab Kinew didn’t say yes or no but encouraged people to review the law journal article. “There’s some important points to be made there.”
carol.sanders@freepress.mb.ca
Carol Sanders
Legislature reporter
Carol Sanders is a reporter at the Free Press legislature bureau. The former general assignment reporter and copy editor joined the paper in 1997. Read more about Carol.
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