Sending a private investigator to follow a judge is not about ‘defending constitutional freedom’

Last week, John Carpay, the founder and president of the Calgary-based Justice Centre for Constitutional Freedoms (JCCF), admitted that he hired a private investigator to follow and surveil Manitoba Court of Queen’s Bench Chief Justice Glenn Joyal.

It was a shocking admission of an odious act that strikes at the very heart of the Canadian justice system.

Carpay, who has since taken an indefinite leave of absence from the board of the JCCF, was acting president of the organization, while they were in court to challenge Manitoba’s COVID restrictions — a case that was being heard by Justice Joyal.

The JCCF and Carpay represent a group of churches who contend that the number of COVID deaths in Manitoba have been “inaccurately inflated” and that public health measures have caused “personal rights and freedoms [to vanish] almost overnight.”

The group’s court application describes COVID restrictions that limit the size of public gatherings as “draconian” measures that violate the church’s Charter-protected rights to freedoms of conscience, religion, expression, and peaceful assembly.

Carpay claims that his decision to surveil a sitting judge was an error in judgement made as part of an effort to “hold government officials accountable” and was not intended to influence or impact the court case.

Carpay’s explanation rings hollow. If stalking the judge was not intended to influence or impact the ongoing court case, what exactly was the purpose of this ham-fisted surveillance operation?

It might be that Carpay is careful with his words because it is a criminal offence to engage in acts of intimidation towards justice system participants, including judges, to impede them in the performance of their duties. Being followed from the courthouse and surveilled in the middle of an ongoing case can easily be seen as intimidation.

But, while there are likely grounds to believe Carpay’s act was indeed criminal, a prosecution would face an uphill battle. For example, one could argue that because the surveillance was meant to be covert, this inextricably leads to a defence that the conduct was intended to be secret and therefore not evidence of an intent to intimidate or interfere with the administration of justice.

But if Carpay did not intend to influence the results in court, what exactly was the purpose of the surveillance?

Perhaps Carpay thought he might catch the judge breaking one of the province’s COVID rules, like not wearing a mask or attending an overcapacity indoor gathering. Let’s ignore the fact that Carpay has not suggested there was any good faith basis to believe this was the case, but even if surveillance showed the judge violating a COVID rule, so what?

What exactly would Carpay have done with that information? It is not relevant to any issue before the court and would not provide grounds for allegations of bias or justify a recusal.

It seems more likely that Carpay was looking for some mud to throw to discredit the judge and the justice system should his clients lose. Perhaps the real goal of the JCCF was not to “defend the constitutional freedoms of Canadians through litigation,” as they claim on their website but to sow dissent and confusion in furtherance of their political agenda.

To put it plainly, setting a private investigator loose on a judge is not compatible with the defence of constitutional freedoms — it is antithetical to it.

I find most of the JCCF’s work distasteful. They seem overly focused on the “rights” of those who wish to discriminate against marginalized groups.

The JCCF intervened in the Trinity Western case (they lost), they sought to strike down a law protecting the privacy of kids in gay-straight alliances (they lost), they argued that Indigenous ceremonies at school infringed on the rights of Christian children (they lost), and they have challenged British Columbia’s COVID public health measures (they lost).

But maybe this type of litigation should come as no surprise coming from Capay, who once, at a Rebel News conference, compared rainbow pride flags to swastikas.

 The JCCF and even those who disagree with their worldview have long argued that there is nothing wrong with using the legal system to advance unpopular, socially conservative, or insensitive legal positions. After all, the whole point of the Charter of Rights and Freedoms is to provide legal mechanisms to ensure a proper balancing of rights.

But by surveilling and stalking a judge, the JCCF and Carpay acted well outside the bounds of legal and ethical propriety. It may be challenging to prove that Carpay committed a criminal offence, but his PI stunt is incompatible with his ethical obligations as a lawyer.

They shouldn’t need to teach students in law school that surveilling judges is beyond the pale and inconsistent with a lawyer’s obligations to the administration of justice.

We will soon see what the law societies think. Ottawa lawyer Richard Warman has filed a complaint with the law societies of Manitoba and Alberta against Carpay.

There must be swift and decisive action in this case.

To put it bluntly, Carpay should be disciplined and maybe even disbarred for his abhorrent conduct.

Editor's Note: this article has been corrected to clarify that John Carpay was not the lead lawyer on the Manitoba lockdown challenge.