Manitoba Justice Vic Toews will face an investigation by Canada's judicial watchdog over alleged breaches of conflict-of-interest rules, but the former Conservative cabinet minister — through his lawyer — says he's done nothing wrong.
The Canadian Judicial Council, the body that oversees federally appointed judges in Canada, confirmed on Monday that it's launching a review of Toews's conduct as a result of a complaint filed by a private citizen this past weekend. It's not immediately clear who filed the complaint.
The complaint was filed after Canada's ethics commissioner, Mary Dawson, found that Toews broke conflict-of-interest rules by doing consulting work for two Manitoba First Nations after he left office in 2013.
But Winnipeg lawyer Robert Tapper, who is representing Toews, says Dawson made a number of errors in her investigation, such as not allowing them to question those who provided testimony.
"She instructed witnesses that she was dealing with and interviewing, that they were not allowed to speak to my client and they were not allowed to speak to me — which is, of course, a tremendous violation of procedural and legal ethics," he said in an interview.
Tapper also said a binder of gathered evidence, provided to him by Dawson, contains facts that directly contradict some of the findings published in her investigation report.
"I read this [information in the binder] and then I read that and I go, 'How did A go to B?' I don't understand it," he said.
In a statement, a spokesperson for the Office of the Conflict of Interest and Ethics Commissioner said, "Commissioner Dawson followed established processes in her investigation and stands behind her report."
Dawson's office declined a request from CBC News for a copy of the information contained in the binder in question, saying it "required to conduct all investigations in confidence."
"Such confidentiality covers all documents associated with an investigation, even after the investigation has been concluded," an official stated in an email. "Any information about the examination that we can make public is included in the Commissioner's report."
Tapper declined to comment on the Canadian Judicial Council's decision to review his client's conduct.
Council could recommend removal
The council, which oversees federally appointed judges in Canada, could recommend Toews's removal from the bench.
However, it's too early at this point to say what will come out of its review, said Johanna Laporte, the council's director of communications and registry services.
The council's executive director will examine the complaint and decide if it should be forwarded to a member of its judicial conduct committee, who would decide to either dismiss the complaint or refer it to a review panel.
"A review panel will then … consider whether the matter, if proven, would be serious enough to possibly warrant removal and would refer the matter to an inquiry committee," Laporte said.
Toews retired from federal politics in July 2013. He served as minister of justice, president of the Treasury Board and minister of public safety in several Conservative cabinets. He worked as a lobbyist and consultant in 2013.
He was appointed to the Manitoba Court of Queen's Bench in March 2014.
Toews will remain on the bench while the Canadian Judicial Council review is underway, says Manitoba Chief Justice Glenn Joyal.
"The very specific and distinct jurisdiction and process of the ethics commissioner, whose jurisdiction, processes and related conclusions may be challenged by Justice Toews, are separate from the jurisdiction and focus of the Canadian Judicial Council," Joyal wrote in a statement.
"That separate Canadian Judicial Council process, to the extent that it will unfold in respect of Justice Toews, must be respected. Accordingly, he remains a sitting judge of the Court of Queen's Bench."
The Conflict of Interest Act prohibits former public office holders, including ministers, from acting on behalf of any person or organization in connection with a case where the Crown had previously been a party to it, or the former minister had once been involved with it.
In her report, released Friday, Dawson said Toews advised a First Nations group that he had previously battled when he was Treasury Board president in Stephen Harper's cabinet.
"In providing strategic advice on a proposed settlement agreement in relation to the Kapyong matter, and in participating in its drafting, Mr. Toews switched sides," she wrote.
"He acted for or on behalf of a party that was seeking relief against a decision in which he had been involved as a minister of the Crown."
In 2007, Toews approved the transfer of the Kapyong Barracks, a former military site in Winnipeg, from the Department of National Defence to a Crown corporation known as the Canada Lands Company.
That decision was challenged in court by a group of First Nations, including the Peguis First Nation, and Toews was named as a respondent in the legal proceedings.
The Federal Court ruled in 2012 that the government had failed to adequately consult First Nations, and set aside the transfer. The ruling was upheld by the Federal Court of Appeal in August 2015. The government launched talks with the First Nations toward a settlement; no agreement has been announced to date.
Court documents obtained by CBC News in 2015 showed that Toews — who worked as a consultant for Jeff Rath, a lawyer representing the Peguis First Nation — had reviewed a draft of a proposed Kapyong legal settlement and was involved in talks about how to make it acceptable to municipal and provincial governments.
Dawson's report states that Toews "testified that Mr. Rath had sent him the proposed settlement agreement that Mr. Rath wanted the federal government to sign," but he maintained that he never attempted any communications with Ottawa on any settlement.
Confused one case with another, says lawyer
But Tapper said Dawson is confusing the Kapyong Barracks case with another file altogether: Peguis First Nation's efforts with the Manitoba Jockey Club to develop some land near the Assiniboia Downs horse-racing track.
Rath was the First Nation's lawyer in both cases, and Tapper said Dawson somehow got the two mixed up.
"You can take it right from the lawyer who was involved because he had told her, very clearly, that that was not the case, it had nothing to do with Kapyong," Tapper said, referring to statements Rath made to Dawson.
"When she presented a series of facts that you now see evidenced in her report, he said, 'No, that's not right.'"
Tapper also questions Dawson's finding that Toews had breached the Conflict of Interest Act for providing consultancy services to the Norway House Cree Nation through a company owned by his wife.
The act imposes a two-year cooling-off period for outgoing cabinet ministers before they can work or consult for entities "with which they had direct and significant official dealings" when they were in office.
During his last year in office, Toews had dealings with the Norway House Cree that constituted "direct and significant official dealings," Dawson said.
"It doesn't say you can't communicate with the person you know," Tapper said. "It just says you can't deal with the subject matter of what you were dealing with before."
Critics want Toews off the bench
There are no penalties or sanctions for violating ethics or conflict of interest rules, but Dawson's report has critics and ethics experts urging the Canadian Judicial Council to recommend removing Toews from the bench.
Duff Conacher, co-founder of the citizen group Democracy Watch, said on Monday that he welcomes the Canadian Judicial Council review.
"It's a good step forward and hopefully they will recommend his removal from the bench, because he violated a fundamental good government law. That undermines the public's confidence in the integrity of the judiciary," he said.
Richard Leblanc, an associate professor of governance, law and ethics at York University in Toronto, said Toews should not be allowed to hear court cases because all his decisions could be called into question.
"There's nothing more serious than acting with a view to a conflict of interest," he said.
"That goes to the impartiality of the judge and also the administration of justice and the perceived impartiality of the judge, so it's a pretty serious charge."