Surveillance Of Judge Draws Sanction
The Alberta Law Society Hearing Committee imposed sanctions on two attorneys for hiring a private investigator to follow the Chief Justice to surveil his COVID restrictions compliance.
The misconduct
John Carpay and Jay Cameron (Lawyers) are members of the Law Society of Alberta (LSA). They were entitled to practice law in Manitoba pursuant to the National Mobility Agreement (NMA). They both became involved in litigation challenging the restrictions Manitoba imposed in response to the COVID-19 pandemic (Gateway). Mr. Carpay was the President of the Justice Centre for Constitutional Freedoms (JCCF) which funded the Gateway applicants, and Mr. Cameron was the lawyer whom Mr. Carpay chose to be counsel in the application.
The citations before this Hearing Committee (Committee) arise as a result of the Lawyers conspiring to have a private investigator (PI) follow Chief Justice Joyal in hopes of obtaining evidence that the Chief Justice was breaching the public health restrictions Manitoba imposed in response to the COVID-19 pandemic, while the Chief Justice had the Gateway decision on reserve. The surveillance was discovered when the Chief Justice observed that he was being followed, and an agent of the PI attended the Chief Justice’s home. The Chief Justice called a conference of counsel where the Lawyers attempted to explain themselves. The Lawyers confessed.
Both the LSA and the Law Society of Manitoba (LSM) received complaints. By agreement as permitted in the NMA, the investigation and disciplinary proceedings occurred in Manitoba first. The Lawyers admitted their misconduct. A Discipline Committee of the LSM found that the Lawyers were not candid with the Court when the plot was discovered, and that Mr. Cameron was not candid with the LSM in its investigation. A joint submission resulted in the Lawyers’ ability to practice in Manitoba being severely restricted: The Law Society of Manitoba v Carpay, Cameron, 2023 MBLS 10 (LSM Decision).
The Lawyers were also charged criminally in Manitoba. A plea agreement resulted in a joint submission that saw the Lawyers agree to be bound by a civil peace bond forbidding their practice of law anywhere in Canada for three years, and the Crown withdrawing the charges. The LSA then instituted disciplinary proceedings in Alberta.
This Committee held in the Application that the LSA could pursue discipline in Alberta, despite the LSM having imposed a sanction in Manitoba. This Committee must now decide what, if any, discipline is required in Alberta.
For the reasons that follow, the Lawyers are disbarred.
The panel set out the history of the underlying matter and investigation
We adopt the LSM Committee’s observation: “Judges must have no fear of being subjected to harassment or physical harm … The harassment of one judge is a psychological threat to all judges, and cannot be tolerated in a free and democratic society”: LSM Decision at para 91
This was more than an error in judgment. The Lawyers knew that they had breached their ethical obligations, if not the law. They focused the PI’s attention on the judge, and the surveillance ended only when it was discovered. Only a guilty conscience explains the destruction of evidence and the instructions to the PI (indeed, we note that the prosecutor explaining the Crown’s decision to accept a peace bond described the PI witnesses as “reluctant”).
The Lawyers forgot, or disregarded, or were wilfully blind to the fact (it is not clear which would be worse) that they were members of a profession that owes a duty to the Court, and ultimately to the “non-negotiable” rule of law in Canada when they appointed themselves to police a sitting judge, in an attempt to get evidence that could only embarrass the judge, in order to use that evidence in prosecuting the judge in the court of public opinion. It seems they did not see the irony in their attempt to bring into disrepute the very administration of justice that the JCCF and Gateway applicants relied upon to address what they perceived as government overreach.
Impact of sanction on Respondents
Mr. Carpay was admitted to the Alberta bar in 1999. He told the Committee of some of the litigation he has been involved in, and his involvement in the community. Mr. Carpay is now 58 years old, has four children, and is still involved in the JCCF but not practicing law. He has abided by the terms of the civil peace bond. Mr. Carpay has no disciplinary record. He has apologized for his misconduct several times. He acknowledged his misconduct and cooperated with the disciplinary process.
Mr. Carpay explained in examination-in-chief that the problem with his actions is that Joyal CJ had not yet given his Gateway decision; Mr. Carpay explained that he opened the door for people to speculate about using the fruits of the investigation to influence the judge. And, “it’s just not appropriate for a lawyer who is involved in the litigation process to be doing surveillance on a judge.” Notably, Mr. Carpay did not connect his misconduct to the larger concepts of judicial independence or the rule of law. We have not considered his lack of insight as an aggravating factor. Nor have we considered the fact that we did not find Mr. Carpay to be a reliable witness as an aggravating factor.
Mr. Cameron was admitted to the Alberta bar in 2008. He is an inactive member of the Law Society of British Columbia. He is 47 years old, married, and is the sole provider for his family. He ran a private practice and was retained by the JCCF for Gateway. His practice had dropped off by mid-2022 and he was unable to continue. He has abided by the terms of the peace bond. He has been supporting his family through savings, manual labour, landscaping, and odd jobs. Except for his attempt at deceiving the LSM by suggesting that Mr. Carpay drew him into the plot, he has acknowledged his misconduct and cooperated with the disciplinary process. We accept that he regrets his actions.
We accept that disbarment has significantly more of an impact on Mr. Cameron than on Mr. Carpay, who is still paid by the JCCF.
Sanction
We have concluded that there is no disciplinary measure short of disbarment that can achieve the “most fundamental” goal of maintaining the reputation of the profession.
Appearances matter. Even though the prosecution in Manitoba thought they could not prove beyond a reasonable doubt that the Lawyers had the mens rea to obstruct justice when setting out to embarrass the judge who was deciding their case, a reasonable observer would think that influencing the judge’s decision is what the Lawyers intended. The Committee adopts Perlmutter ACJ’s words: “It should go without saying that our institutions, our public officials and the citizenry’s own deep respect for the rule of law and judicial independence will, like Chief Justice Joyal himself, never permit this sort of behaviour to take place, even once, let alone as a normalized litigation strategy.” The public must know that lawyers do not and cannot engage in this misconduct. As was said in McGuire, supra para 62, other lawyers must receive the message: “Don’t even think about it.”
The public must also know that our self-governing profession takes misconduct of this kind seriously. We have considered that disbarment is the harshest penalty available and that it will necessarily have a significant impact on both Lawyers, especially Mr. Cameron. But the principle in Bolton is unforgiving – the reputation of the profession is more important than the fortunes of any individual member. The misconduct in this case, compounded by issues regarding integrity, leads us to find that a reasonable observer would surely consider that misconduct of this kind must inevitably result in disbarment.
(Mike Frisch)