Manitoba Premier Wab Kinew speaks at the 2024 Western Premiers’ Conference in Whitehorse, on June 10.Crystal Schick/The Canadian Press
A decade ago, one of Canada’s most skilled and accomplished defence lawyers was disparaged as a bad feminist, simply for defending her client. To those who misunderstood the principles of democracy and justice, Marie Henein had betrayed her gender by taking on the case of former CBC broadcaster Jian Ghomeshi, who had been accused by multiple women of sexual assault. Her triumph – Mr. Ghomeshi was found not guilty – was, in their view, also her shame; she helped a bad man evade justice. What kind of self-respecting woman could do that?
One might have hoped that the many big-picture discussions about our justice system in the aftermath of the Ghomeshi case would have better informed the public about the essential nature of a vigorous criminal defence. A system predicated on fairness and the presumption of innocence cannot function if defence lawyers do not take on cases involving even the most heinous of crimes. Indeed, their role is to defend their client from unfair prosecution and to force the Crown to make its case beyond a reasonable doubt. It is not to excuse the nature of the crimes of which their client is accused.
Manitoba Premier Wab Kinew – who, it is well known, had his own personal interactions with the criminal-justice system in the past – ought to be among those most vigorously defending the Charter right to a fair hearing. And yet, he has backed the decision to boot one of his party’s MLAs because of his connection – and a very tenuous one, at that – to the legal defence of fashion mogul and convicted sex offender Peter Nygard.
On Monday, Fort Garry MLA Mark Wasyliw, who continues to work as a lawyer, was removed from the NDP caucus after it emerged that his business partner is acting as Mr. Nygard’s defence lawyer. Caucus chair Mike Moyes said that “Wasyliw’s failure to demonstrate good judgment does not align with our caucus principles of mutual respect and trust.” The Premier defended the decision Tuesday, saying that “[Mr. Wasyliw] can be affiliated with the NDP or he can be affiliated with Peter Nygard, but he can’t be both.”
This is a credible challenge in ridiculousness to that time then-public safety minister Vic Toews suggested that those opposing the Conservative government’s online surveillance bill could either “stand with us or with the child pornographers.”
Manitoba’s opposition Progressive Conservatives have called for an investigation into Mr. Wasyliw’s ensuing accusations of bullying by Mr. Kinew, but they don’t have a leg to stand on here. Back in 2023, when they were in power, they attacked Mr. Wasyliw for “repeatedly fighting to make our streets less safe.” But to their credit, their disregard for the tenets of a fair justice system at least had to do with work that Mr. Wasyliw himself was actually doing.
Mr. Kinew is perpetuating the illiberal and frankly idiotic notion that Mr. Wasyliw’s character is poisoned by his association with a firm hired to defend Mr. Nygard. It’s unclear why the NDP would expect Mr. Wasyliw to sever his ties to his firm over Mr. Nygard now, but not over its ostensibly many associations with other past clients accused or convicted of sexual assault. Wouldn’t someone whose values truly “align” with the Manitoba NDP want to distance himself from a firm tasked with defending anyone against charges of this nature, even if they weren’t famous?
The answer, of course, is: No, you dolt. Because holding progressive and/or liberal values and recognizing the essential nature of a fair defence are not mutually exclusive. Rather, they are complementary: Defence lawyers keep the extraordinary power of the state in check and protect those accused of crimes from unfair detention. Their work is not a reflection of the character of their clients; it is a mechanism to uphold their rights.
It’s likely that Mr. Kinew and his caucus do genuinely understand that, and instead have found what they might have seen as a convenient excuse to rid themselves of a nuisance character. On Wednesday, Mr. Moyes, the caucus chair, admitted as much: “For the last year, caucus leadership has worked with Mark to encourage him to be a strong team player and to be a role model for our new MLAs. Unfortunately, he continued to demonstrate a pattern of deceit and disrespect that was harmful to our team,” he said. The NDP was also surely displeased by Mr. Wasyliw’s decision to continue practising law after being passed over for a cabinet position, despite earlier saying that he would wind down his practice.
But then, Mr. Kinew should have simply said, “Hey, this guy sucks, we can’t work with him.” That would have been far better than perpetuating the fallacious notion that criminal lawyers should be pilloried for those whom they choose to defend.