On Oct. 15, 2024, a three-person LSA tribunal (“hearing committee”) issued a 202-paragraph, 40-page (single-spaced) “report” finding former United Conservative Party cabinet minister Kelechi (Kaycee) Madu guilty of professional misconduct “deserving of sanction” because, on March 10, 2021, Alberta’s then-justice minister and solicitor general called Edmonton’s police chief to say that he had been stopped and ticketed for distracted driving minutes earlier and wanted assurances that he had not been racially profiled or illegally surveilled.
Kaycee Madu, Kaycee Madu KC Law Firm
The LSA’s hearing committee, composed of two lawyers, Tamela Coates and Robert Philp, and a layperson, Michael Brodrick, wrote in its report that it was “cognizant of the fact (which is also undisputed) that Mr. Madu never expressly asked Chief D.M. to do anything with respect to the ticket.”
(Presenting counsel for the LSA did submit before the tribunal, however, that the inference could be made that Madu’s purpose in making the call (while Madu’s purpose was not essential to evaluating his conduct) “was not to seek the assurances but to attempt to influence what happened with the ticket.”)
The hearing committee said it was “also uncontroverted that Chief D.M. did nothing about the ticket. He instead handled the situation by telling Mr. Madu that Mr. Madu could either pay the ticket or fight it in court and told him that he doubted that the traffic stop was the result of racial profiling. At the time of the call, Chief D.M. did not know what Mr. Madu meant about the Lethbridge situation and thus gave no assurance one way or the other about that.”
After reviewing all the evidence, including the testimony of Madu, the police chief and the police constable, the committee found that “Mr. Madu’s account of several points key to these proceedings, including the reason he made the call, was simply not believable.”
The committee said it did not believe, for example, that Madu mentioned just once that he was the justice minister to the police constable who ticketed him — but rather accepted it happened four times, as stated by the police constable, who had made contemporaneous notes.
The LSA tribunal concluded that Madu’s “conduct failed to meet the high standard required of all lawyers.”
“He used his position as the chief law enforcement officer of the province to privately call Edmonton’s chief of police to raise an issue concerning a personal matter,” the hearing committee explained. “He had, according to him, wrongfully been issued a traffic ticket” (he told the police constable and also testified that he had not been holding or looking at his cellphone) “and wanted assurance that he had not been racially profiled or subjected to similar treatment as had the MLA by the Lethbridge Police Service.”
The hearing committee went on to find that what a reasonable member of the public, informed of the relevant facts, would think about the call to the police chief’s private cellphone “is that the Minister of Justice and Solicitor General was trying to use his position to, at a minimum, bring forward a personal issue to the Chief of Police to have it addressed.”
“His conduct is inconsistent with his commitment as a lawyer as it imports special access and the perception of special treatment,” the hearing committee reasoned. “That remains whether or not Mr. Madu expressly asked Chief D.M. to do anything about the ticket. In short, Mr. Madu’s conduct, regardless of his intent, created the appearance of impropriety: that the Minister of Justice and Solicitor General could sidestep the processes available to members of the public faced with the same situation and potentially avail himself of a result through that process.”
Madu told Law360 Canada the tribunal’s decision took him by surprise.
“Obviously, that was not an outcome that I had anticipated,” he observed. “I maintain my innocence,” he added. “I am speaking with my lawyers and examining avenues for appeal.”
An internal LSA appeal would go to a panel of benchers, which could be followed by an appeal as-of-right to the Alberta Court of Appeal, and subsequently with a by-leave appeal to the Supreme Court of Canada.
However, the same hearing committee must first decide what it will impose as a sanction, which could include a “reprimand,” a suspension for a prescribed time with conditions or disbarment, in addition to a monetary penalty of up to $10,000 and an order requiring Madu to pay the law society’s costs.
“At this time we are studying the decision,” said Perry Mack of Calgary’s Peacock Linder Halt and Mack, who with Joyce Bolton represents Madu. “The sanction hearing has now been set for Feb. 3, 2025,” he told Law360 Canada.
The law society declined to comment on the decision, as did Mack.
Andrew Flavelle Martin, Dalhousie University
The Madu case is unique, Martin told Law360 Canada. “There are some cases where Cabinet members … called judges,” he noted. “I’m not aware of any similar incidents of AGs or cabinet ministers calling police.”
Gavin MacKenzie, MacKenzie Barristers
MacKenzie pointed to the committee’s statement that “the fact of the call … undermines the administration of justice” (para. 142 — emphasis in original), which conclusion it reaches by considering as the governing principles “public perception, objectively determined, and what is in the best interests of the public and members of the Law Society of Alberta,” and “not the intent or motivation of the lawyer in question (para 145).”
“The committee treats as irrelevant the fact that a Black lawyer says he called the chief of police because they had been working together on the problem of racial profiling by the police, and he wanted assurance that he was not being racially profiled,” MacKenzie said. “I cannot accept that public perception should be determinative while a racialized lawyer’s motivation is disregarded and treated as irrelevant,” he said. “Public perception is important, but only if it is informed. I like to think that if the public accepted that Mr. Madu called the chief of police because he wanted assurance that he was not being racially profiled that would affect the public’s perception of the call.”
MacKenzie said the mens rea requirement for a finding of professional misconduct varies, depending on the nature of the allegation. “In the Groia case, the Supreme Court of Canada held that a ‘fundamentally contextual and fact-specific analysis’ is required when determining whether a lawyer’s behaviour amounts to professional misconduct,” he explained. “The court made it clear that law societies should not sanction lawyers for sincerely held but mistaken legal strategies: [stating] ‘even the most unreasonable mistakes can be sincerely held.’ It is not an objective test to be applied without regard to the lawyer’s subjective intent.”
MacKenzie said in Madu’s case, the context “includes his sensitivity to racial profiling and the work he was doing at that very time with chiefs of police and others to address that serious issue. In Ontario, discipline hearing panels have held that they should take notice of systemic discrimination. Lawyers are not required to demonstrate that disadvantage and discrimination exist and adversely affect the lives of racialized lawyers.”
MacKenzie noted it was an agreed fact at the tribunal that Madu did not ask the police chief to intervene to dispense with his traffic ticket. “It strikes me as implausible that Mr. Madu might expect the chief to do so in light of this,” he remarked. “I don’t see any important issue of credibility the committee was required to address.”
Gideon Christian, University of Calgary
Noting that he, like Madu, is a Black lawyer of Nigerian descent, Christian said the “decision to impanel an all-White committee to address a case centred on racial profiling reinforces the perception that the legal profession dismisses the lived experiences of racialized individuals and lacks representation, even in key decision-making processes that involve racialized lawyers.”
“The panel’s apparent disregard for Madu’s concerns about racial profiling may deepen mistrust in the profession’s commitment to addressing systemic racism while also raising anxieties about the fairness Black lawyers face in their own careers,” he suggested.
Christian said, “In my view, the issues of racial profiling raised by Mr. Madu and his expressed rationale for his actions were acknowledged by the hearing committee but were not given any weight in their reasoning.”
“While the committee noted that it should consider ‘the existence and impact of systemic racism and discrimination’ when applying the perspective of a reasonably informed member of the public, it ultimately dismissed the importance of these concerns,” he elaborated. “The committee recognized Mr. Madu’s position and the work he had done to address issues like racial profiling and carding, but they concluded that a ‘reasonably informed member of the public’ would not have detailed knowledge of his personal experiences or the nuances of his work beyond what was publicly known at the time. Hence, the committee’s ‘objective’ standard, which was dismissive of Madu’s lived experiences as a Black man, is deeply troubling from a racial justice perspective.”
Christian said the hypothetical “reasonable person” posited by the hearing committee “appears to be someone without the lived experience of systemic racism, racial profiling or familiarity with Madu’s work and community engagement at the time of the call.”
He added that “this approach is troubling and contrasts with a more expansive social context theory, which would recognize the importance of considering how racialized individuals’ experiences shape their perceptions and actions. This more inclusive approach, as referenced by the Supreme Court of Canada in the landmark [1997] case of R. v. S. (R.D.), would allow for a deeper understanding of how systemic racism might have influenced Madu’s actions and concerns,” he said. “By refusing to incorporate Mr. Madu’s lived experience in its assessment of a reasonable person, the committee detached itself from an important reality of the case before it. Therefore, a hypothetical ‘reasonable person’ in this case should fully step into Mr. Madu’s shoes and possess knowledge of his personal lived experiences and the details of his work at that time related to racial profiling and carding by law enforcement.”
Christian said that in disciplinary matters involving lawyers, the intent behind actions typically plays a significant role in determining whether the conduct is deserving of sanction. “There is a presumption by the profession that lawyers, including politician-lawyers, act with integrity. Hence, any position to the contrary should include a consideration of the context and motivations behind their actions.”
He remarked that “by not thoroughly engaging with Madu’s intent, particularly his role in addressing systemic racism, the committee’s standard could be considered to be overly harsh or disconnected from the realities of Madu’s position as a racialized lawyer and Minister of Justice. An absolute liability standard should not be the appropriate standard for disciplinary matters where intention and context are crucial. If every action that creates the appearance of impropriety is punished without regard for intent, this may lead to disproportionate disciplinary measures, especially in significant and complex cases like Madu’s, where issues of systemic racism and political responsibilities are at play.”
Christian said that the perception of a hypothetical reasonable person can vary depending on whether that person is racialized or not.
“A non-racialized reasonable person, someone without personal experience or deep understanding of systemic racism and racial profiling, might view Mr. Madu’s call to the police chief more skeptically,” he explained. “From this perspective, the call could be seen as an inappropriate use of authority, especially in light of the general expectation that such concerns should follow formal channels rather than direct communication between a Minister of Justice and a police chief. This viewpoint might emphasize the ‘optics’ of power dynamics and perceive Madu’s actions as an overreach, possibly overshadowing his stated rationale of addressing systemic racial profiling.”
By contrast, a racialized reasonable person, particularly one who has experienced racial profiling in police encounters, might be more inclined to view Madu’s actions as credible and justified, Christian said. “They could better understand the urgency and rationale behind his call, given the context of systemic racism and the numerous public complaints Madu had received about racial profiling. This person would likely see Madu’s direct approach as a legitimate attempt to address these deep-rooted issues in real time. From this perspective, Madu’s call might be seen not as an abuse of power but as an act consistent with his role in the administration of justice and protecting racialized communities from discrimination.”
The hearing committee wrote in its report that the phone call of the then-justice minister and solicitor general to Edmonton’s police chief was “inconsistent with Mr. Madu’s commitment to equal justice for all within an open, ordered and impartial system.”
“A hallmark of that system is transparency — not private dealing,” the tribunal reasoned. “Far from encouraging public respect for the administration of justice, Mr. Madu’s conduct is reasonably perceived as sidestepping the process entirely and thus eroding public confidence in the administration of justice and in the legal profession. It was irresponsible and failed to meet the high standard required to retain the trust, respect and confidence of other members of the profession and members of the public.”
The hearing committee rejected as “not credible” Madu’s “attempt to distinguish” what he and the law society agreed “prompted” his call — i.e. the issuance of the ticket — from the purpose of the call, which Madu had testified was not to seek or expect the dispensation of the ticket but rather to seek assurance that the traffic stop was not the result of the Edmonton police force engaging in illegal surveillance or racial profiling.
His counsel argued that a justice minister and solicitor general can always discuss racial profiling and police conduct with a chief of police, regardless of the trigger, and in fact, had often done so previously with Edmonton’s police chief.
(Some months earlier, Madu had exercised his power to ban police “carding” and at the time of the impugned phone call, the UCP government was poised to outlaw the stopping, questioning and documenting of people not suspected of crimes, a police practice that disproportionately affected Black, Indigenous and racialized people.)
Moreover, Madu’s counsel urged that his client was obliged by the LSA’s Code of Conduct to raise his concerns about the traffic stop with the police chief given his obligation as a lawyer and justice minister to encourage public respect for, and try to improve, the administration of justice.
Madu’s counsel urged that his client was not deserving of sanction. According to the hearing committee’s report, counsel urged that the lens through which his client’s conduct must be considered “is that of a member of the public who has, in essence, been in Mr. Madu’s shoes: a Black Minister of Justice who ‘spent six months getting an earful from the Black and ethnic communities about policing, who then is confronted with the Lethbridge situation.’”
“Counsel for Mr. Madu submits this committee should ‘look at this through the lens of a reasonable member of the public, who is fully apprised of all the facts and circumstances, and the lens of the public attuned to the issues and importance of the policy concerns of this particular minister,’” the tribunal said. “He submits that Mr. Madu’s personal circumstances and responsibilities as a minister are an important part of the lens through which this committee must view the events.”
However, the tribunal said that when determining whether a lawyer’s conduct amounts to conduct that is “incompatible with the best interests of the public or the members of the LSA or tends to harm the standing of the legal profession, generally,” the analysis is “necessarily objective.”
“Public perception, objectively determined, and what is in the best interests of the public and members of the LSA are the governing principles: not the intent or motivation of the lawyer in question,” the hearing committee explained.
The hearing committee emphasized that they and Alberta’s law society “take issues of racism and discrimination seriously.” The hearing committee cited as one example the LSA’s public acknowledgment of the existence and impact of systemic discrimination within the justice system, including within the law society and the legal profession.
The tribunal also said there were no allegations that racism or discrimination played a role in the traffic stop or ticketing of Madu.
The hearing committee “must consider all of the relevant facts and circumstances and the existence and impact of systemic racism and discrimination in applying the lens of an appropriately (i.e. reasonably) informed member of the public,” its report states. “The committee also agrees that it should also not be influenced by the political and media storm that emerged after [Madu’s phone] call became public in 2022.”
The hearing committee members went on to disagree with the submission of Madu’s counsel that they should take into account, when assessing the public’s perception, what a reasonably informed member of the public would perceive if they had fully stepped into Madu’s shoes and knew of his personal and life experiences and details of his work, priorities and initiatives as justice minister and solicitor general.
“We are of the view that a reasonably informed member of the public would not have insight, and certainly not detailed insight, into the work being done by Mr. Madu’s ministry to the extent that it was not already in the public domain,” the committee wrote. “Mr. Madu’s work may be relevant, but only to the extent that it was made public at the time of the events in question (i.e. on March 10, 2021), such as the public announcement that Mr. Madu had banned carding and that his office was working on legislation to that effect and the publicity concerning the surveillance situation in Lethbridge with the MLA.”
The tribunal summed up the case as being “about a call that never should have happened.”
“Almost immediately after failing to convince an Edmonton Police Service traffic constable that he was not using his cellphone while driving, the chief law enforcement officer of Alberta used his position, and information he had by virtue of that position, to call the private cellphone of the chief of the Edmonton Police Service,” the tribunal said. “He told him that he had just been issued a ticket for distracted driving and also raised concerns about whether he had been racially profiled or illegally surveilled. While much time was spent in this hearing about the reason for the call, the fact of the call, in the circumstances of this case, undermines the administration of justice.”
Madu’s conduct fell “short of the standard he is required to uphold, particularly given his unique status at the time of the call: Minister of Justice and Solicitor General,” found the hearing committee. “In making the call to Chief D.M., Mr. Madu acted in a manner that is incompatible with the best interests of the public and the members of the LSA and also engaged in conduct that tends to harm the standing of the legal profession generally. It is, therefore, conduct deserving of sanction.”
Martin said one clear takeaway from the hearing committee’s report is that politicians who are lawyers, “including, and especially, the attorney general, … are held to the same standard as practising lawyers or lawyers in private practice.”
The decision also sends a message that “lawyers can’t seek special treatment for themselves because of their role in government,” he said.
And although some people might argue that law societies should not spend significant time and resources to regulate politicians who happen to be lawyers — given what they see as “more important things to do,” like dealing with mortgage fraud and embezzlement — “I think when it’s the attorney general who’s a lawyer with a very important role in the administration of justice and practicing, that those things drop away,” Martin suggested. “We have to be very concerned about public perception, given how serious the conduct was.”
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