This is a case of déjà vu all over again.
When Bernard Amyot resigned as the lead counsel of a public inquiry that will shortly be investigating surveillance of journalists by Quebec police, it marked the third time in seven years that a lawyer who sought to make a mark in public affairs had his hopes dashed.
Amyot, an ambitious Montreal lawyer with solid credentials, was appointed days before Christmas as lead counsel of the Commission of Inquiry on the Protection of the Confidentiality of Journalistic Sources by Quebec Court of Appeal Justice Jacques Chamberland, the chair of the commission. Less than three weeks later, an opinion piece penned by Amyot nine years ago came to haunt him. He had castigated Montreal columnist Patrick Lagacé for being a pseudo journalist who lacked vigor:
“Lagacé, who is neither a journalist nor an analyst, all the same claims the right to preach to everyone, however without deigning to impose on himself, in a measured and rational manner, the necessary rigour to debate ideas.”
Calls for his resignation by the organization that represents Quebec journalists soon followed because the opinion piece raised doubts about his neutrality. Lagacé, after all, is a central figure behind the scandal that prompted the Quebec government to launch the inquiry. Last fall it was revealed that the high-profile journalist had been the target of a months-long covert police operation that tracked calls and texts on his iPhone because law enforcement authorities were trying to find the source of an internal leak to the media.
In a statement Amyot said “doubts have been raised about me, and even though these doubts have no legal basis, I am making the decision to withdraw from my position as lead counsel.”
In 2012 renown Montreal lawyer Sylvain Lussier too felt compelled to resign a week after being nominated lead counsel of Quebec’s public inquiry into the province’s construction industry, which came to be known as the Charbonneau Commission. “Doubts” had been raised about a possible appearance of conflict of interest over an old case he had worked on as a lawyer, and while Lussier asserted that the concerns had “no basis in fact or in law,” trepidation over the integrity of the inquiry prompted him to step down.
In 2010 Québec City lawyer Pierre Cimon also saw slip away his opportunity to leave his mark as lead counsel of a public inquiry that examined the way judges are nominated in Quebec, or the Bastarache inquiry as it is better known. Barely a week after being appointed by former Supreme Court justice Michel Bastarache, Cimon bitterly resigned after being caught in a political maelstrom that raised doubts over his impartiality following revelations that he had regularly contributed to the Quebec Liberal Party. Between 2002 and 2007, Cimon made five donations ranging from $250 to $500 – far less than what he gives to the Barreau du Québec’s Foundation or his local parish.
“I donate to the local parish even though I am not a churchgoer,” Cimon told me at the time. “I donate because I believe churches play an important social role. It doesn’t mean that I practice and believe in the church’s dogma or agree with Cardinal Marc Ouellet’s position that abortion should be criminalized. The same holds true for the donations I made to the Liberals. I am a federalist, and that was the only place I could donate.”
Though the trial lawyer asserts he is apolitical, never attended a political meeting nor solicited or received any benefit from any government, and does not even know anyone stemming from ranks of the Liberals, he felt he had no choice to step down in order to avoid doubt being cast on the impartiality of the Bastarache Commission and to ensure the serenity of its procedures.
The Quebec Act respecting public inquiry commissions is silent about how the commission’s counsel are appointed. It does not state who has the power to appoint the counsel nor does it stipulate whether a procedure should be followed. That is not a unique situation. The Ontario Public Inquiries Act too provides no “provision for this crucial step in an inquiry’s life,” pointed out a 1992 Report on Public Inquiries by the Ontario Law Reform Commission. (That is still the case today).
In practice, the power to select an inquiry’s counsel is granted to the chair of the commission. “There are no rules or guidelines,” told me a lawyer familiar with the inner workings of public inquiries. A Protocol on the appointment of judges to commissions of inquiry that was adopted by the Canadian Judicial Council in 2010 states that’s the way it should be. “The judge should have complete independence in selecting his or her staff, in particular the commission counsel,” says the Protocol.
But the three resignations strongly suggest that it is perhaps time to review how judges appoint counsel to public inquiries. “I have seen how public inquiries can restore confidence and fix institutions – and I have also seen the tremendous impact on individuals whose lives are forever changed through their participation in the process,” once remarked former Ontario Court of Appeal Justice Dennis O’Connor, who sat as Commissioner on both the Walkerton and Arar Inquiries. At a time when public confidence in the justice system is under siege, it is incumbent upon judges appointed to head public inquiries to put in place proper vetting procedures that take into account not only conflicts of interest but perceived conflicts of interest that may cast doubt upon the players even though the qualms may have “no legal basis.” It certainly would help if they were media savvy and aware that in this day of age of unhealthy partisanship and intense media scrutiny, aided and abetted by the omnipresence of social media, that perceived conflicts of interest take on a life of its own.
Lawyers appointed as lead counsel of public inquiries too bear a responsibility of side-stepping potential ethical minefields. The president of the Fédération professionnelle des journalistes du Québec, Stéphane Giroux, noted that a simple Google search revealed that Amyot had written a “very disturbing” article that led to his resignation. Lagacé, upon learning of Amyot’s resignation, said that he was astonished that Amyot had accepted the mandate to act as lead counsel of the inquiry in the first place. “He is no doubt a good lawyer, I have nothing to say about that, but he knew what he had written about journalism, the media and certain individuals such as myself. I find it surprising that he had accepted, but he redeemed himself by recusing.”
But there’s no reason for yet another public inquiry to be subjected to an unnecessary blot. More is and should be expected.