Should a sitting member of Parliament be providing a letter of reference on behalf of someone who is awaiting sentencing for kidnapping the lawyer for the City of Oshawa?
It’s a question that has raised eyebrows for those following the story of former Oshawa, Ont. councillor Robert Lutczyk kidnapping David Potts, the city’s solicitor and a father of four, at gunpoint from the driveway of his home, holding him hostage in an industrial unit for several hours on Oct. 15, 2012.
While Potts was released unharmed, the incident ended only after a 26-hour standoff between Lutczyk and police.
Lutczyk blamed Potts for a decision the City of Oshawa made to garnish his council salary between 2008 and 2010 with respect to a $190,000 judgment against him by a construction client, and for a dispute in 2003 between the city and his father related to a zoning bylaw.
As the city solicitor, it was ultimately Potts’ responsibility to make the determination whether there was enough evidence to proceed with a prosecution under the city’s zoning bylaw. He decided there was and the prosecution led to a conviction and $1,000 fine following a trial.
Lutczyk pursued appeals all the way to the Supreme Court of Canada and lost.
The former councillor has been in custody since the kidnapping occurred. He entered a guilty plea last December for the kidnapping, as well as two other weapons charges.
During sentencing submissions Feb. 4 in Durham Superior Court, Chris Murphy, Lutczyk’s defence counsel, read a letter of reference from Dr. Colin Carrie, the MP for Oshawa.
In the letter, Carrie referred to knowing Lutczyk in his capacity as an MP during the time from 2004 until Lutczyk left council in 2010.
“… I can say, with certainty that these actions are out of character for the community leader I came to know,” wrote the MP.
When contacted by Canadian Lawyer InHouse, Carrie’s constituency office declined a request for interview, but it provided the following comment by e-mail:
“I wrote a letter referencing Mr. Lutcyzk’s service to our community. However shocking his actions, they do not erase the dedicated service he provided to Oshawa. I was encouraged when I learned that Mr. Lutczyk had pleaded guilty and had taken full responsibility for his actions. I have the utmost faith in our judicial system and rest assured that justice will be served.”
The sub judice convention restricts members of Parliament from referring during debates to matters that are awaiting judicial decisions.
Some say that by offering his letter of reference, Carrie is operating in a sensitive area by doing so during court submissions on sentencing for such a serious matter.
“This is something an MP should exercise caution in doing, particularly on official MP letterhead, as there is the danger that it could be viewed as a member of the government trying to influence court proceedings,” says Brian Radnoff, a partner with Lerners LLP in Toronto.
“However, there is not the same concern about prejudicing the litigants as might occur with comments in Parliament.”
Criminal defence lawyer Annamaria Enenajor, of Ruby & Shiller Barristers, says that while MPs are expected to refrain from discussions of matters under consideration of a criminal court, in this case, what Carrie did would not likely be viewed as trying to influence the court.
“The contours of this rule are a bit murky, so it would not necessarily be an absolute bar to an MP contributing to a criminal case in a permissible way, for example, as a material witness,” says Enenajor.
“Sentencing is a part of the process where public input through reference letters and victim impact statements is permissible and, indeed, instrumental in assisting the court. These contributions are appropriately taken into consideration during the sentencing phase and, as such, are unlikely to constitute undue influence.”
Osgoode Hall Law School dean Lorne Sossin doesn’t see a problem with Carrie penning the letter in support of Lutczyk.
“Certainly, if an MP took a public position in a criminal case, this would be problematic, but an MP commenting in a court document on personal experience with an accused/offender without taking a position — I would not view this as running afoul of the rule/convention,” he says.
And while rules restrict MPs from making motions or asking questions about matters before courts during debate in Parliament, political science professor Emmett Macfarlane, of the University of Waterloo, says it isn’t “codified so much as a convention.”
“Outside of Parliament, MPs are basically free to do so; they just often say they can’t,” he adds, noting that a reference letter would be regarded differently than “publicly discussing” matters before a court.