Judges should not cite lawyers for criminal contempt on a whim

Criminal contempt is a rare exercise of a court’s coercive powers. As the Manitoba Court of Appeal emphasized, it must be exercised with “‘scrupulous care and restraint” to preserve public confidence in the administration of justice.

Yet, within the confines of Justice Michael Wendl’s Hamilton courtroom, it appears that contempt findings are now casually wielded against those who fail to show unwavering deference to the court's bureaucratic whims.

Last week, Wendl cited Hamilton criminal defence lawyer Genevieve Eliany for contempt when she failed to deliver a memo of law he had requested during a judicial pre-trial.

While judicial pre-trials are not obligatory under criminal rules, they are typically a prerequisite to authorize trial time in most jurisdictions. These informal proceedings, often conducted off the record, allow defence and Crown counsel to present their case positions and receive judicial input. Although judicial pre-trials can effectively narrow trial issues, the presiding judge lacks the authority to rule on those issues or prevent parties from advancing arguments.

According to the Hamilton Spectator, Eliany and the Crown were seeking court time for a sexual assault trial, with Eliany indicating her intention to bring a s. 276 application to introduce evidence about the complainant’s prior sexual history. None of this is unusual.

However, Wendl insisting on a memo outlining Eliany's arguments is highly unusual – an unprecedented demand in a judicial pre-trial.

No statutory authority empowers an administrative pre-trial judge to demand a memo or disclosure of information from counsel. The Criminal Code specifies timelines and rules for applications but does not mandate defence counsel to submit any material before court time is even set – for good reason.

Requiring the defence to outline their position risks unfairness, may well put counsel in breach of their ethical responsibilities, and creates an uneven legal playing field. Wendl’s insistence on a defence memo is another glaring example of unpaid defence labour used as lubrication for the justice system's cogs.

Eliany did not produce the memo, and Wendl claimed he had “no choice but to cite her in contempt.” However, he did have a choice; he could have avoided citing her in contempt or refused to allocate court time for the application. Instead, he escalated the situation, dedicating scarce court time to his contempt endeavour while delaying a sexual assault case and casting a shadow over the proper functioning of the justice system.

This sets a disturbing precedent. Could Wendl next order the Crown to produce a memo about their reasonable prospect of conviction, demand that lawyers conduct research for him, or require the defence to disclose their witness list – all under the threat of jail?

I have never seen judicial power wielded in such a heavy-handed or capricious manner. Genevieve Eliany is, by all accounts (and I asked around), an honest and upstanding advocate. Yet, she now unfairly faces a tarnished reputation, legal expenses, and the possibility of jail time, all for not producing a memo that should never have been required.

As defence lawyers, we are accustomed to unfair criticism and disrespect, and now we face jail for refusing to comply with unreasonable demands.

Apart from this incident, there are reasons to question Wendl’s judgment. Last year, an appeals court rebuked Wendl for unreasonably deviating from two joint sentencing positions and, in one case, imposing an illegal sentence.

And then there was that time as a lawyer, Wendl came to the defence of a Hamilton judge who wore a bright red MAGA hat into the courtroom and said that he broke decorum to “piss off the rest of the judges because they all voted for Hillary, so I was the only Trump supporter up there, but that’s okay.”

Wendl downplayed the behaviour, saying, “It is my view that Justice Zabel was joking. In fact, I was joking with him. It is my view that Justice Zabel’s conduct was likely just a byproduct of the collegial atmosphere that exists in Hamilton…” – a collegiality that apparently starts with MAGA hats but ends with demands for unnecessary memos.

The Hamilton Spectator reports that local defence lawyers have declined to speak publicly about the issue, and I don’t blame them. These lawyers will need to appear before Wendl in the future and comply with his demands or risk finding themselves behind bars.

So, it is vital for everyone in the legal profession to speak up on their behalf and make it clear that Wendl’s attack on the criminal defence bar and the justice system is the only contemptuous thing in this whole sordid affair.