Lawyer files misconduct complaint after private investigator hired to follow Manitoba chief justice

A human rights lawyer is filing a professional misconduct complaint against the lawyers representing seven churches fighting public health orders after one admitted to hiring a private investigator to follow a Manitoba judge presiding over the case.

John Carpay, the head of the Calgary-based Justice Centre for Constitutional Freedoms — which launched the court challenge on behalf of the group of churches and individuals — admitted in court on Monday that his organization hired the private investigator to follow Court of Queen's Bench Chief Justice Glenn Joyal.

Ottawa human rights lawyer Richard Warman told CBC News he filed a complaint with the law societies of Manitoba and Alberta that same day.

"It's probably the most egregious case of professional misconduct that I've heard of in quite some time," he said.

"I would certainly hope that the Law Society of Manitoba and [the Law Society of] Alberta will sanction in the strongest possible terms to make it clear that it's completely and utterly unacceptable for a member of the bar to engage in this kind of conduct."

Joyal said in court that he realized he was being followed by a vehicle on July 8 when leaving the Manitoba law courts building in downtown Winnipeg and driving around the city.  

The private investigator even followed him to his private residence and had a young boy ring his doorbell while he wasn't home in an attempt to confirm where he lives. The private investigator also followed him to his cottage, Joyal said.

Carpay said in a statement that the decision was meant to hold officials accountable and was his own initiative. He said he did not discuss it with Justice Centre clients, staff lawyers or members of the board.

During the court hearing, Joyal said Carpay's colleague, Jay Cameron, who is also working on the charter challenge of public health orders, knew about the private investigator for some time. 

"Mr. Cameron, as counsel for the applicant, was not party to the [private investigator's] retainer but became aware of it a couple of weeks ago," the chief justice said. 

Carpay apologized to Joyal, calling it an error in judgment. He says no other judges have been followed. Carpay did not identify the private investigator.

The chief justice said that "it goes a significant ways" that Carpay accepted responsibility for his actions and that the situation will not affect his capacity to impartially bring an independent, fair and objective resolution to the trial.

But Warman said it's more than just an error in judgment.

"It's a shocking attempt to, I believe, intimidate a member of the justice system. I believe that's a criminal offence and that it should be investigated as such."

A spokesperson for the Winnipeg Police Service confirmed they are investigating the matter but said they could not comment further.

Unprecedented scenario

Law experts are shocked by Carpay's move.

"It's obviously a tremendous, tremendous lapse of judgment by the legal team involved, it seems to me, and one really that's without precedent as far as I'm concerned," said Eric Adams, the vice dean of law at the University of Alberta and a constitutional law scholar.

"It takes your breath away, the mindset that an individual would engage in to take that course of action. I mean, for what purpose would that information be gathered except for an improper one? It's hard to imagine."

Winnipeg criminal defence lawyer Joshua Rogala said the scenario can be compared to an accused person hiring a private investigator to follow the jurors deciding their case.

"It's a very serious allegation to interfere with justice system participants because it goes to the core foundation of our justice system," he said. 

"The justice system can't function properly if participants within it are fearful."

A private investigator who was not involved in following the chief justice said there may also be professional implications for the private eye because they allegedly used an underage child to gain information on where Joyal lived.

"In order to become a private investigator, you have to be 18 years of age and you also have to be licensed, so you can't have a young child carrying out your inquiries about the privacy of a judge's home on your behalf. It's not legal," said Janie Duncan, president of Duncan Investigations in Manitoba.

The justice system can't function properly if participants within it are fearful.- Joshua Rogala, Winnipeg criminal defence lawyer

She said she believes this is a clear violation of the Private Investigators and Security Guards Act. 

Duncan said she doesn't think the private investigator should have accepted the job.

"The security and safety of judges and their privacy is paramount, particularly given the cases and decisions they make daily, and I don't believe it was reasonable to follow him."

A spokesperson for Manitoba Justice said the Private Investigators and Security Guards Program, which oversees the industry, is aware of the concerns and is reviewing the information to determine what action may be required. 

What's next?

Now that a professional misconduct complaint has been filed, the University of Alberta's Adams said the law society must adjudicate to see if there was, in fact, a breach of the professional code.

If a breach was made, it must decide on an appropriate sanction. But that will be difficult to decide because this is such a rare situation.

"The ultimate sanction in these kinds of matters is a disbarment, where someone has their legal licence taken away, but I don't think [that] is going to be on the table here," Adams said.

"What exactly is the proportionate penalty for someone engaged in this kind of conduct? Again, I don't think there's a clear road map about what that might be."

Leah Kosokowsky, CEO of the Law Society of Manitoba, said in an email that the matters disclosed in court on Monday raise "serious concerns" because the professional code of conduct prohibits a lawyer from trying to influence a decision by the court or any other tribunal other than as an open advocate.

"The law society would be very concerned if a lawyer were found to have attempted to improperly influence the cause of justice by hiring a private investigator to follow the judge who is presiding over the matter," she wrote in the email.

Warman said he hopes to see strong repercussions.

"Any lawyer found to have been involved in this should face the most severe sanctions possible, up to and including disbarment. This is just not done."