A group of professors is urging Ontario's law society to investigate allegations that the federal government's lead counsel at hearings into the handling of Afghan detainees is in a conflict of interest.
The allegations refer to Alain Préfontaine, the senior counsel and director general in the Department of Justice.
"At this writing, Mr. Préfontaine is making ongoing, almost weekly appearances before the [Military Police Complaints Commission], and the conduct complained of is profoundly corrosive to the administration of justice," the five professors write in a letter to the Law Society of Upper Canada.
"It is a high priority that if Mr. Préfontaine has violated the Rules of Professional Conduct, those violations end before more harm is done to the tribunal and its process."
The letter was signed by:
- University of Ottawa law professor Amir Attaran.
- University of Windsor law professor Reem Bahdi.
- University of British Columbia political science professor Michael Byers.
- University of Ottawa law professor Pascale Fournier.
- Osgoode Hall Law School professor Craig Scott.
The professors, who stress that any references to wrongdoing should be taken as unproven allegations, say that Préfontaine admits to acting under a joint retainer for the seven members of the military police and the government.
"For example, the Government of Canada might want certain documents withheld from the MPCC because their disclosure would be unflattering about Government policy. The MPs, however, may want those same documents entered into evidence, to show that Government policy rather than individual action is at fault."
The professors say that in 2009, Préfontaine, arguing on behalf of the government, gave various reasons why certain documents could not be produced for the tribunal. But they say he subsequently argued on behalf of the seven military police officers that they couldn't get a fair hearing without access to those documents.
The hearing was adjourned.
"It is alleged Mr. Préfontaine abused his joint retainer by playing one client off the other, forcing an adjournment and frustrating the tribunal as a whole. This appears deeply at odds with the ethical obligations of a lawyer."
The professors also raise questions about Préfontaine allegedly treating diplomat Richard Colvin as both client and adverse witness.
Préfontaine cross-examined Colvin in March when Colvin testified at the MPCC. Last October, before the same commission, Préfontaine told the commission he represented Colvin. He argued that as a government employee, Colvin was his "putative client" and that he represented him, and that they were engaged in a solicitor-client relationship
"Rather than taking the view that Mr. Colvin was formerly his client and that it would be inappropriate to cross-examine him, instead Mr. Préfontaine attacked his former client for giving adverse testimony. Such conduct would normally be a conflict of interest," the professors write.
Préfontaine has denied any conflict.
The professors also allege that Préfontaine can be heard on CBC's World at Six radio program "physically intimidating" CBC reporter James Cudmore after Cudmore questioned him about a possible conflict of interest.
"The recording suggests that Mr. Préfontaine adopted a threatening stance inches away from Mr. Cudmore's face and demanded Mr. Cudmore to back off," they write. "Nothing in the recording suggests that Mr. Cudmore acted provocatively, or was anything other than polite and inquisitive."
The professors conclude the letter suggesting that if the Law Society is unable to conclude its investigation into the allegations, Préfontaine should "cease acting before the MPCC as an interim measure, pending a fuller investigation."
The confrontation between Préfontaine and CBC reporter James Cudmore, referenced in this article. To listen to the taped exchange, click on the play button below:
James Cudmore's full report for CBC radio World at Six. To listen to the recording, click on the play button below: