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Shandro appointment during investigation puts law society in a no-win situation: experts

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A group of Alberta law professors say Tyler Shandro should have refused his appointment as justice minister while he is under investigation by the Law Society of Alberta, and Premier Jason Kenney’s cabinet shuffle puts the society in a difficult situation.

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Writing in the University of Calgary’s Faculty of Law blog this week, legal experts Shaun Fluker, Nigel Bankes and Martin Olszynski said a report prepared by retired Justice Adèle Kent into former justice minister Kaycee Madu leaves important questions unanswered, and the decision to replace Madu with Shandro demonstrates disrespect for the law society’s processes.

The report, released publicly on Friday, came after the law society determined allegations about Shandro’s behavior while he was health minister warranted a disciplinary hearing, which is yet to be scheduled. Three complaints allege Shandro broke the society’s code of conduct, including that he used his former position as health minister to obtain personal cell phone numbers of health-care workers.

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“Premier Kenney should not have put the law society, a statutory body, in this invidious position and, in the circumstances, Minister Shandro should have declined the appointment,” the professors wrote.

In an interview with Postmedia Tuesday, Fluker said sanctions could taint the relationship between the minister and the body in charge of regulating the legal profession in the province, but a decision not to sanction Shandro based on the evidence it hears could create the perception “that the whole process was influenced by the nature of the office.”

“The Law Society is really placed in, one might say, a no-win situation,” said Fluker. The society is an independent body, but does report to the minister, who appoints some public members to its governing board.

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Fluker said it would have been reasonable for Sonya Savage, who is Alberta’s energy minister, to continue to serve as interim justice minister while the hearing plays out.

“There’s a lot riding on the perception of the public on the integrity of the law society and the legal profession. It’s hard to overstate what that amounts to,” said Fluker.

Kenney, speaking at an unrelated announcement Wednesday, dismissed the complaints against Shandro as politicized, saying the law society is an independent, self-governing regulatory body whose complaint process is not directed by government.

After a complaint is reviewed by the law society it can be dismissed or referred to a committee or public hearing.

Kenney said the society looks at all complaints, whether they are frivolous or not, pointing to a complaint filed against former NDP justice minister Kathleen Ganley which, unlike the complaints leveled against Shandro, did not warrant a hearing.

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“I have every confidence in Minister Shandro, who I think objectively is one of the best qualified ministers of justice in Alberta history,” said Kenney.

NDP justice critic Irfan Sabir said in a Wednesday statement to Postmedia no cabinet ministers were involved in similar hearings during the NDP’s tenure. Sabir added Madu’s attempt to interfere in the administration of justice is a firing offense for any cabinet minister, and neither Madu nor Shandro have been held accountable for their behavior by the UCP government.

“Public confidence in the rule of law has been damaged even further by the UCP rewarding Madu’s egregious behavior with another seat in Alberta’s cabinet,” said Sabir.

The Kent report concludes that Madu tried to interfere in the administration of justice with a call to Edmonton’s police chief after receiving a distracted driving ticket in March last year, but he was unsuccessful, and his call created a reasonable perception of an interference with the administration of justice.

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The blog post notes that Kenney, when announcing Madu would become minister of labor and immigration, failed to disclose Kent’s most “stinging rebuke,” namely that Madu attempted to interfere in the administration of justice.

“A person reading the premier’s statement could be forgiven for thinking that Ms. Kent had only delivered a mild rebuke to Minister Madu. Nothing could be further from the truth, ”she said it.

The law professors wrote they found it “extremely concerning” no one in leadership positions initiated an investigation into Madu until reports of the phone call were published by the CBC, and questioned whether Madu should be subject to disciplinary action under the law society’s code of conduct .

“If it’s considered to be behavior that is inappropriate, and may bring the reputation of the profession into disrepute, then it seems to me that that’s clearly potential grounds for conduct investigation,” said Fluker.

lijohnson@postmedia.com

twitter.com/reportrix

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