It will take years for Canadians to learn if the charitable status is removed from a Calgary-based advocacy group that spied on a Manitoba judge presiding over a constitutional challenge of COVID-19 public health orders.
John Carpay, an Alberta lawyer and the president of the Justice Centre for Constitutional Freedoms, stepped down Tuesday after he admitted in court one day earlier he'd hired private investigators to track Chief Justice Glenn Joyal and other Manitoba public health officials.
Charity behind snooping takes on headline-grabbing casesClick to Expand
Posted: 7:02 PM Jul. 13, 2021
The charity that paid to have a private investigator tail a prominent Manitoba judge also helped a Manitoban unsuccessfully try to get a licence plate with "ASIMIL8" on it.
The Justice Centre for Constitutional Freedoms, which has been listed as a charity by the Canada Revenue Agency since October 2010, says it has won more than 30 court victories and out-of-court settlements with its free legal representation.
The libertarian organization collected $2.6 million in donations last year. As a registered charity since 2010, taxpayers indirectly fund its activities since donors receive receipts for income tax purposes.
The Canada Revenue Agency said it can't confirm whether it is reviewing the organization's status. In a statement to the Free Press Tuesday, a spokeswoman cited confidentiality provisions and said the agency can't disclose when a charity is being audited. An audit would need to happen in order for its charitable status to be revoked.
That could take years, said Mark Blumberg, a Toronto lawyer who specializes in advising non-profits and registered charities. Blumberg said Carpay's actions may have put the organization's charity status at risk.
"A charity is not allowed to be involved in illegal activities," Blumberg said.
"When applying for charitable status, if you say we will have a private investigator follow a judge, obviously the CRA wouldn't be happy to see such a thing... but section 241 of the Income Tax Act stops the CRA from disclosing any information about a charity except some parts of its financial report. The CRA cannot confirm or deny anything. The CRA can say nothing.
"Unless they are revoked for cause we will never know. And, with the average charity, it takes 10 years."
Blumberg said another victim is the charitable sector itself, because when one charity does something questionable it erodes trust in all charities.
"When they do something inappropriate, it brings down the whole charity sector," he said.
"Trust is important. And it's not just one charity recently — there was the WE charity, too. And, unfortunately, the CRA can say nothing. The organization who knows the most can say nothing.
"I want the charity sector to have a good reputation and this isn't making me happy."
In responding to the case, Justice Minister Cameron Friesen was evasive when asked whether he’d ask prosecutors to launch a contempt of court proceeding.
"I would say everything is on the table," Friesen told reporters at a news conference on another topic.
"I don't want to get too far into discussions about what we may contemplate."
On Tuesday, the centre's board of directors announced Carpay's "indefinite leave" and said no one but he and the centre's litigation director knew about the plan to surveil public officials to find out if they were following COVID-19 public-health orders.
During a hearing in Manitoba Court of Queen's Bench Monday, the chief justice revealed he'd discovered he was being tailed. Carpay admitted he had hired private investigators to follow government officials to see if they obeyed public-health orders.
Joyal was the only judge among several Manitoba public officials being tracked, Carpay said.
Joyal is presiding over the constitutional challenge launched by the centre on behalf of seven Manitoba churches. They argue provincial COVID-19 orders violate their rights to worship and gather. The judge is expected to issue his decision in a few weeks. On Monday, he said the spying incident won't affect his ruling.
Court was told the centre's litigation director, lawyer Jay Cameron, had known about the private investigation for a couple of weeks. In a statement Tuesday, the centre's board of directors said no one else was aware of the tactic.
"No member of the board had any prior notice or knowledge of this plan and had not been consulted on it. Had the board been advised of the plan, it would have immediately brought it to an end. Mr. Carpay has acknowledged that he made the decision unilaterally. Apart from the Justice Centre’s litigation director, none of the Justice centre’s lawyers or board members were aware that this was occurring until July 12," the board stated.
"The Justice centre’s mandate is to defend Canadians’ constitutional freedoms through litigation and education. Surveilling public officials is not what we do. We condemn what was done without reservation. We apologize to Chief Justice Joyal for the alarm, disturbance, and violation of privacy. All such activity has ceased and will not reoccur in future."
The incident is being investigated by both the Winnipeg Police Service and Law Society of Manitoba. No criminal charges have been laid, but Bruce MacFarlane, Manitoba's former deputy attorney general, said investigators should determine whether there is evidence of contempt of court, obstruction of justice, intimidation of a criminal justice participant, or stalking.
"I'm not saying that any of these were committed, I'm saying that these are the offences that I would be looking at to see if an offence was committed," MacFarlane said.
An Ottawa human rights lawyer has filed formal misconduct complaints against Carpay and Cameron and requested an investigation into the conduct of a third lawyer.
Richard Warman filed complaints to the Law Society of Alberta, where both Carpay and Cameron are licensed to practise law. He also filed a request asking the Law Society of Manitoba to investigate Allison Pejovic, who has also represented the organization in legal proceedings in this province, to determine whether she had any role in the private investigation.
Warman told the Free Press he had an obligation as a lawyer to report any misconduct and did so after seeing news reports from Monday's court hearing.
"It's probably one of the most egregious examples of professional misconduct that I can think of in the 20 years that I've been a lawyer. I think it just shocked my conscience when I learned about what had been reported and what appears to have been admitted to in open court," he said.
Joyal announced in court Monday that he noticed he was being followed as he left the courthouse and did errands around Winnipeg last week. He said a teenage boy arrived at his home and asked his daughter where he was.
Police determined a private investigator was following Joyal and had also obtained the address of his cottage. After Joyal made the revelation, Cameron asked for a break in the court hearing. When court resumed, Carpay admitted responsibility for hiring the private investigator. He apologized to the judge, but said the public has a right to know whether public officials are following COVID-19 health orders.
Katie May reports on courts, crime and justice for the Free Press.
Kevin Rollason is one of the more versatile reporters at the Winnipeg Free Press. Whether it is covering city hall, the law courts, or general reporting, Rollason can be counted on to not only answer the 5 Ws — Who, What, When, Where and Why — but to do it in an interesting and accessible way for readers.