You can't say that: muzzled lawyers
by Jacob Ziegel
This commentary was first published in the National Post on December 12, 2009.
It was bound to happen, and now it has. From the earliest days of Confederation, many practicing lawyers, bar associations, presidents of the Canadian Bar Association and academics (both legal and non-legal) have complained about abuses by successive federal governments in exercising their judicial appointment powers — all to little avail.
None anticipated, however, that this most basic form of free speech would land a lawyer in trouble with a provincial law society. Yet the improbable has happened. John Morgan, mayor of the Cape Breton Regional Municipality (CBRM) and a lawyer, are currently facing a charge of unprofessional conduct from the Barristers’ Society of Nova Scotia, the provincial body charged with regulating the legal profession in that province.
The events leading up to the charge were as follows. Cape Breton, by common consent one of the poorest regions of Nova Scotia, is facing a $20-million dollar deficit in its current budget. John Morgan has complained publicly that the region is not receiving its fair share of Ottawa’s equalization payments to the province. In a desperate move, the CBRM launched an action against the provincial government alleging that the government had reneged on a constitutional obligation to allocate the equalization funds equitably among the regions.
Justice John Murphy of the Nova Scotia Supreme Court rejected the claim in April 2008 and held that it had no basis in law. His decision was upheld in May 2009 on appeal to the Nova Scotia Court of Appeal.
Shortly after the appellate court decision, Mr, Morgan was interviewed on CBC’s Information Morning about the litigation and, in the course of the interview, expressed the following opinion: “One of the challenges we face as we work through the Nova Scotia system is [sic] virtually all of the justices, not to their discredit, but a reality is that all of them are part of the political structures that are endemic in the province of Nova Scotia, and as we move to justices outside the Nova Scotia system, you do get away from that internal provincial government system where judges are appointed by political parties, and this justice in particular had ties to the Conservative party, not to his discredit, but it’s a reality we are dealing with. I would have preferred to have one of the Cape Breton justices dealing with the case rather than a Halifax one.”
A Cape Breton lawyer, who is also a Conservative party member, complained to the Barristers’ Society about John Morgan’s remarks, presumably on the ground that they brought the administration of justice in Nova Scotia into disrepute. Darrel Pink, executive director of the society, thought there was substance to the complaint and so a charge of unprofessional conduct was brought against Mr. Morgan. One of the society’s rules requires Nova Scotia lawyers to encourage public respect for justice and the administration of justice in the province. The case is still pending.
Mr. Morgan’s criticisms of the trial judge in this case may have been misdirected since the judge was actually a Jean Chrétien appointee. So, presumably, were one or more members of the Nova Scotia Court of Appeal, who heard the appeal. Nevertheless, Mr. Morgan was exercising a right of free speech guaranteed by the Canadian Charter of Rights and Freedoms, and it is very troubling that that right is in jeopardy at the hands of the very bodies that should be most committed to its protection.
Unhappily, Mr. Morgan is not the first lawyer to discover that the legal establishment has a much more circumscribed view of the bounds of free speech than is shared by free speech advocates. An even more striking case involved Robert Histed, a Winnipeg lawyer, who faced a complaint of professional misconduct brought against him by the Manitoba Law Society in 2004. Mr. Histed was corresponding with a Department of Justice lawyer in Ottawa about agreeing on a list of three judges from which a case management judge was to be selected. He referred to one of the judges, whose name had been mooted, as “a bigot.”
The Law Society convicted Mr. Histed of professional misconduct and imposed a fine. Even more troubling is the fact that the conviction was upheld on appeal by a unanimous Manitoba Court of Appeal. The court found that derogatory remarks about a judge were not part of the core values protected by the Charter. Surprisingly, the Supreme Court of Canada refused leave to appeal the decision.
Those who have long regarded freedom of expression as the most fundamental of the rights guaranteed by the Charter may have to rethink whether better means can be found to protect the right than to entrust its custody to judges and lawyers.
