MLA Mark Wasyliw defends Winnipeg police officer in court a day after being kicked out of caucus

A Manitoba MLA was in court defending a Winnipeg police officer against an impaired driving charge on Tuesday, a day after being kicked out of the Manitoba NDP caucus — a move one legal expert says may have allowed the governing party to dodge a potential conflict.

The New Democrats removed Mark Wasyliw, an MLA who is still a practising criminal defence lawyer, from their caucus on Monday, which eliminated what could have been a tough issue for the government to defend, says Andrew Flavelle Martin, an assistant professor at Dalhousie University's law school in Halifax.

"I would have a lot of concerns about an MLA of the governing party representing, in this case, a Winnipeg police officer," Martin said Tuesday.

"I think the reason they gave for taking him out of caucus was terrible and should be very concerning to everybody. But it may be that the fact that he's out of caucus makes the issues less complicated."

The NDP said Monday that Wasyliw, who represents the Fort Garry riding in the legislature, was being removed from caucus because a colleague at the law firm where he works is defending convicted sexual predator Peter Nygard in court — which the NDP caucus chair said was a failure by Wasyliw to "demonstrate good judgment."

On Tuesday, Wasyliw was in a Winnipeg courtroom defending police officer Robin Kipling against a 2021 impaired driving charge.

Kipling, who has pleaded not guilty, was charged following a single-vehicle accident on Sept. 29, 2021. Court heard he was riding his motorcycle when he hit some loose gravel and lost control.

There were no witnesses to the accident and no one else was injured.

Wasyliw closed his arguments by saying the Crown's case had "gaping holes" around a blood sample taken at hospital showing Kipling was over the legal alcohol limit.

Kipling arrived at the hospital by ambulance, but court heard there was no record to show what time the blood sample was taken and no record of who took it.

"They're asking the court to fill in evidentiary gaps," Wasyliw said.

Kipling declined to comment after Tuesday's arguments.

Provincial court Judge Keith Eyrikson reserved his decision. 

'Really problematic': law prof

If Wasyliw was still in caucus, defending a Winnipeg police officer would have raised possible conflict of interest issues given the relationship between government and police, said Dalhousie University's Martin.

"Is this person putting their political interests ahead of the interests of their clients? Do they want to avoid embarrassing the government?" he said.

"If you're a lawyer representing someone unpopular, might you soft-pedal your advocacy so you don't embarrass the government in this situation?"

Speaking after the hearing, Wasyliw said the NDP was not aware he was defending Kipling. Repeating comments he made Monday, he maintained the reason for his expulsion had nothing to do with his colleague defending Nygard.

Wasyliw has said he wasn't afraid to disagree with decisions made by Premier Wab Kinew, which the NDP leader did not like.

"This is about me, somebody who stands up to him, who won't be bullied by him — somebody who will challenge him when I think he's making bad decisions," Wasyliw said Tuesday. 

Kinew denied the bullying allegations on Tuesday and defended his party's decision, noting that Nygard still faces charges in Winnipeg, and having a sitting NDP MLA working at the same firm as Nygard's lawyer was "going to cause at the very least the perception of a problem."

Martin said now that Wasyliw is sitting as an Independent, the government can more easily disassociate itself from what the MLA is doing as a lawyer. 

But his colleague's defence work on the Nygard case isn't a reason to kick Wasyliw out of caucus, the law professor said. 

"It's really problematic that a caucus or anyone else would decide that we're going to kick you out of our group because someone you work with was defending someone we don't like," Martin said.

"It's very important that everyone get a fair trial and has fair access to defence counsel."

'Everybody deserves a defence'

Wayne Ewasko, the interim leader of the Opposition Progressive Conservatives, questioned why the Nygard defence would be a final straw for the NDP, when previous concerns about who Wasyliw was representing in his own legal practice were ignored.

"I know when some of these concerns were brought up in the past, Wab Kinew stood by and absolutely defended him," said Ewasko. 

"Wab, the premier of Manitoba, wants to have a distraction."

NDP caucus chair Mike Moyes said the news Wasyliw is defending a police officer reaffirms the party's decision to turf him.

"When you are an MLA in our caucus, it's the expectation that you give your constituents 110 per cent," he said in an emailed statement.

Wasyliw said on Tuesday that if anyone has a problem with a sitting MLA representing a Winnipeg police officer in court, that's their opinion, but he defended his actions.

"Everybody deserves a defence. And I do this on my own time," he said.

"This doesn't conflict with my duties as a public official. And I think people respect those boundaries."