Last week, Mark Wasyliw, a lawyer and elected member of Manitoba’s Legislative Assembly, was ejected from the governing NDP’s caucus. The party took this decision because Gerri Wiebe — a former law partner of Wasyliw — is acting as the defence lawyer for 83-year-old fashion mogul Peter Nygard.Â
Nygard was recently convicted of four counts of sexual assault in Ontario and is facing similar charges in Manitoba. The Ontario sentencing decision described Nygard as a “sexual predator” who exploited his power and reputation to assault young women over many years.
Manitoba Premier Wab Kinew has defended the decision to eject Wasyliw, saying “you can be affiliated with the NDP or you can be affiliated with Peter Nygard, but you can’t do both.”Â
This justification shows a dangerous misunderstanding of criminal defence lawyers and their role in our justice system.
To defend someone in court is completely unlike voting for that person. It is not an endorsement of what they have done or are alleged to have done.
A lawyer representing Nygard in a criminal trial is like a doctor performing surgery on Nygard in an operating room. Both are doing their jobs by helping Nygard, but neither are “affiliated” with him. Neither one can be held morally responsible for his acts.
Nor is either of them necessarily even free to refuse help to Nygard, however awful his behaviour. The Code of Professional Conduct, which applies to all lawyers in Canada, says lawyers are not to “decline representation merely because a person seeking legal services or that person’s cause is unpopular or notorious, or because powerful interests or allegations of misconduct or malfeasance are involved.”
Our criminal justice system should only punish people who are found guilty, and it should give out punishments that suit their crimes. Before a judge or jury decides on a person’s guilt, both sides must be fully argued. That is impossible unless lawyers are ready, willing and able to defend the accused — and free from retaliation for doing so.
The attack of the Manitoba politicians on Gerri Wiebe — although indirect — was perhaps even more troubling than their attack on Wasyliw. The message their actions send is that defending a high-profile accused person makes you a pariah, who brings opprobrium on anyone close to you.Â
The NDP effectively ended Wasilyw’s political career because he didn’t sever ties with Wiebe after she was retained by Nygard. Should a lawyer like Wiebe — who does their job in accordance with their professional obligations — pay a price in lost relationships with people who are coerced by the government to pretend they never knew her?
It is natural and human to feel outraged by crime and to demand consequences for the perpetrators. I felt this keenly myself when my spouse was randomly assaulted by a stranger while walking into the subway in downtown Toronto.
However, when we have these feelings we should step back and remember that some people charged with heinous crimes — and subjected to loud public denunciations — are later found to be innocent.
Umar Zameer, for example, was accused of intentionally running down a plainclothes police officer in a Toronto parking garage in 2021. Ontario Premier Doug Ford, former mayor John Tory and other prominent politicians effectively said Zameer was guilty and should not be released on bail.
Yet, in April 2024, after a three-year ordeal, a jury cleared Zameer of all charges and the judge apologized to him on behalf of the criminal justice system. Zameer’s own perseverance was matched only by that of his criminal defence lawyer, Nader Hasan.
Another essential role of criminal defence lawyers is to prevent people who actually did break the law from being subjected to cruel, unusual or excessive punishment. Sentences can easily be inflated by racism, revenge mindsets or simple blindness to the humanity of the accused. Good defenders help protect against those outcomes.
Finally, defence lawyers can help the criminal law change with the times. In the 1980s, some people (especially racialized and Indigenous people) were convicted to decades of imprisonment for marijuana-related offences. Sentences were gradually reduced, and then marijuana was decriminalized completely, in part because of criminal defenders speaking up for the accused and highlighting the human cost of the war on drugs.
When violence wrecks lives, and law enforcement authorities point the finger at a perpetrator like Peter Nygard, it is all too easy to feel that we must unite against that person and ostracize anyone who defends them. But that is the path toward a dysfunctional criminal justice system, and the erosion of the liberties that we all cherish.
Those in positions of power, including the Premier of Manitoba, should know better.
