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This article was published 8/6/2017 (1205 days ago), so information in it may no longer be current.

Manitoba defence lawyers have come out swinging — possibly against one of their own — for questioning the integrity and ethics of the province’s top judges over a controversial plan to eliminate preliminary hearings.

Jody Ostapiw, president of the provincial Criminal Defence Lawyers Association, said it’s no secret her organization has concerns about proposed amendments to the Criminal Code. They’ve spoken out against the four-year pilot project that was pitched earlier this year by Court of Appeal Chief Justice Richard Chartier, Court of Queen’s Bench Chief Justice Glenn Joyal and provincial court Chief Judge Margaret Wiebe.

But Ostapiw said they were shocked that someone identifying themselves as a "practising lawyer" filed a formal complaint with the Canadian Judicial Council, accusing Chartier, Joyal and Wiebe of improper conduct and "backroom political lobbying" with provincial Justice Minister Heather Stefanson. As the Free Press reported exclusively Thursday, that triggered a lengthy investigation by the CJC, which resulted in a finding of no wrongdoing.

"I find that hypocritical and cowardly, frankly," Ostapiw said Thursday. "I struggle to understand the criticism of the lack of transparency, and then remaining anonymous. To attack somebody’s ethics and do it in that way... If you felt that strongly about your position, why would you not openly discuss it?"

The anonymous complainant used a generic email address and told the CJC they feared judicial reprisal if their identity got out. Ostapiw said many will assume a defence lawyer was behind it, given that they’ve been the most vocal about not being consulted over the preliminary hearing idea and have the most to lose.

Download The complaint

"I don’t agree with what (the top judges) did, I don’t like what they did, but I don’t think it’s unethical what they did. There’s a big difference," she said. "This was not an ethical issue. It was a disagreement certainly on the way things went down. I don’t think it deserved to be raised to that level of an ethics complaint. (The person who filed the complaint) doesn’t speak for me and they don’t speak for this organization."

After receiving the complaint, the CJC assigned the matter to Nova Scotia Chief Justice Michael MacDonald for review. MacDonald ruled this week the top judges "did not fail to uphold the principle of judicial independence" by entering into private talks with Stefanson and requesting an audience with federal Justice Minister Jody Wilson-Raybould, who is considering their proposal.

"In disposing of the complaint, Chief Justice MacDonald notes that ongoing dialogue between the judiciary and the executive is necessary to improve the administration of justice," CJC executive director Norman Sabourin said in a statement. "While the idea of eliminating preliminary inquiries is not universally supported, it is worthy of debate by all participants in the justice system. Chief Justices Chartier and Joyal can be commended for their efforts at encouraging such a debate."

Chartier and Joyal spoke with the Free Press Wednesday, saying they were taken aback by the complaint and see it as an attempt to put a "chill" on their ability to lead. Both vowed to continue pushing for judicial reform in the wake of last year’s Supreme Court decision setting new time limits for criminal matters to make their way through the justice system. Provincial court matters must be completed within 18 months after charges are laid. Superior court cases — in Manitoba, the Court of Queen’s Bench — have a 30-month limit.

Cases that take longer are presumed to have violated the accused’s right to a trial in a reasonable amount of time unless the Crown can prove exceptional circumstances. Several legal challenges have followed, including multiple criminal cases being thrown out of court as a result of judicial delay.

"Our government respects the process undertaken by the Canadian Judicial Council and (its) ruling. We believe strongly in collaboration with all stakeholders in order to improve the timeliness of the court process, that includes the judiciary. The judiciary (has) a unique perspective on the administration of justice that has always been appropriately included in policy or legislative work undertaken by government," a provincial spokesman said Thursday in response to a request for comment from Stefanson.

Ostapiw’s organization was critical of the plan when it was made public in February. The Canadian Bar Association sent a letter to Wilson-Raybould, urging her to reject the idea. They proposed suggestions to reduce delays, including appointing more judges, providing more legal aid, eliminating mandatory sentencing and using alternatives to court to deal with minor charges. They cite value in preliminary hearings, including reducing the potential of wrongful convictions.

Ostapiw said Thursday that much has been learned over the past four months, which has led to a softening of the association’s position.

"We’ve had great dialogue (with the judges) since this happened. What we were striving for was an open dialogue, and we’ve gotten that from the bench," said Ostapiw. They also learned that Crown attorneys weren’t consulted, contrary to their initial concerns.

"It wasn’t about us, which is kind of how it initially felt — like we were left out. There were a lot of things that we learned after the fact," she said. "It wasn’t the shady thing that people thought it was in the beginning. I feel they’ve really bent over backwards to meet with us, and to make it clear our voice matters."

Chartier and Joyal said there were no initial consultations with stakeholders because they knew they wouldn’t get immediate consensus. Instead, they chose to make the appeal to Ottawa — after first approaching Stefanson — with the idea of eventually doubling back to work together with all parties should they get approval.

"Out of this, rising out of the ashes, has been an enhanced relationship between us and the court. I like to focus on the positive that’s come out of it," said Ostapiw. "I think that we’re making strides and certainly don’t want to see those go away because people think we had something to do with the CJC."

mike.mcintyre@freepress.mb.ca