MLA Mark Wasyliw was booted from the caucus after news that his law firm represents Peter Nygard
In the wake of Manitoba MLA Mark Wasyliw’s ouster from the NDP caucus, which was prompted by reports that his law firm represents Peter Nygard, members of the legal community are asking: how does this impact the criminal defence profession?
A prominent fashion executive, Nygard has been charged with racketeering, sex trafficking, and sexual assault by US and Canadian prosecutors. A Toronto court sentenced him to 11 years in prison for sexually assaulting four women on Sept. 10.
Manitoba Premier Wab Kinew announced Monday that Wasyliw, the MLA for Fort Garry, had been removed from the NDP caucus due to his firm’s representation of Nygard.
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Kinew argued that the association of Wasyliw’s firm with Nygard’s defence called into question the MLA’s judgment and alignment with the values of the NDP caucus. In response, Wasyliw told the Winnipeg Sun the premier is a bully who struggles with dissent – allegations that prompted PC opposition leader Wayne Ewasko to call for a workplace investigation on Tuesday.
The developments have raised concerns within the legal community. The Manitoba Bar Association said Kinew’s ousting of Wasyliw called into question “how defence lawyers are perceived in our justice system,” adding that “undermining the role of defence lawyers is a step in the wrong direction.”
In a statement, Manitoba Bar Association president Jessica Schofield said, "Criminal defence lawyers play a crucial role in safeguarding the rights of individuals and ensuring a fair and just legal system."
The Criminal Defence Lawyer Association of Manitoba also criticized Wasyliw’s ouster. “When criminal defence lawyers are told that they will be punished for their work upholding important constitutional rights such as the right to a fair trial, it creates a chill in our system of justice and sends the message that we can be punished for having unpopular clients,” the organization said in a statement.
But Michael Spratt, a partner at AGP LLP who serves as a criminal litigator, told Canadian Lawyer that it’s not necessarily unjustified to assume that a lawyer’s values are aligned with those of their clients. A common, if misguided, belief is that lawyers always condone their clients’ conduct, which is “based on a complete lack of understanding about the importance of lawyers in an adversarial system where everyone deserves a fair trial,” Spratt says. “Lawyers are a way that we ensure that someone has a fair trial.”
However, there are also “lots of times when you can equate a lawyer with their clients,” Spratt says, like when a lawyer takes “affirmative actions… outside of the strict confines of representation.” Such actions include when lawyers make statements on social media that indicate they’re aligned with their clients, fundraise on behalf of clients, or appear on their clients’ podcasts.
If Wasyliw had made comments, for example, that the justice system was stacked against Nygard, it might make sense to assume that his firm shared some of his client’s values, Spratt says.
But in this case, “what is so shocking is that the initial justification for this MLA’s ouster… from the caucus was that his law firm had represented an individual. And that is just the most small-minded, basic way of looking at how you should evaluate a lawyer's beliefs, and it completely undermines the important duties and ethical responsibilities that we have as defence lawyers,” Spratt adds.
“I suspect that the real reason this [MLA] was let go from caucus is because there was a conflict with leadership and with members of caucus. And it's fine for political parties to do that,” Spratt says. “But what we have seen here is, you know, a further use and misrepresentation of the justice system for political purposes.”
At a press conference on Tuesday, Kinew responded to a question about various bar association’s concerns about his rationale for ousting Wasyliw by stating, “You have a right to a defence attorney. You do not have a right to be defended by an MLA.
“We’re always going to respect the independence of the justice system,” Kinew said, adding, “For somebody from our government team to be affiliated with [Nygard] does not line up with our values as a political party.
“I will respect what attorneys have to say about the administration of justice,” he said. “But what we’re talking about here is about political elected representatives making decisions about how to steer a government.”
Wasyliw did not respond to a request for comment. 
