Doubt cast on judicial council’s integrity
Handling of ‘nude judge’ case marred by charge of bias
The Canadian Judicial Council allegedly has damaged its very integrity and its ability to offer procedural fairness to judges by its handling of the Lori Douglas case.
Douglas is the Manitoba associate chief justice who remains in limbo as the public hearing into allegations against her collapsed about 16 months ago amid charges the inquiry panel was biased against her.
Judge Douglas is facing four allegations, the most scandalous — and the one that has led to her being described in the cruel shorthand of newspaper headlines as the “nude judge” — that she participated with her lawyer husband, Jack King, in the sexual harassment of Alex Chapman, a former client of King’s.
She has always adamantly denied knowing what her husband was doing with their intimate bedroom pictures — he posted them online on a hardcore sex site and tried to engage Chapman into instigating a sexual relationship with her — and indeed, at the aborted hearing held in Winnipeg in 2012, there was considerable evidence King had been acting on his own, without Douglas’s knowledge or consent.
But in the latest procedural step, her lawyer, Sheila Block, argued this week in Federal Court in Ottawa that not only did the inquiry panel muck up the hearing itself, the CJC, by claiming it has a solicitor-client relationship with its “independent counsel,” has also vitiated the broader duty of fairness it owes the more than 1,000 federally appointed judges it governs.
The claim of privilege stands in sharp contrast to the CJC’s own bylaws and policies, which emphasize that the independent counsel doesn’t report to the CJC, take direction from it or owe it the traditional lawyer’s duty of loyalty and confidentiality.
Last week the fivemember inquiry panel abruptly resigned in what in a real-world context looked like a snit — a pre-emptive snit at that.
The position is also diametrically opposed to what the CJC itself said just three years ago in a report on another disciplinary hearing involving another judge, Paul Cosgrove.
The solicitor-client claim is critical because it means the CJC can give independent counsel “a secret mandate,” or marching orders, and then protect the communications detailing the secret orders from disclosure.
In fact, Block told Judge Richard Mosely, that’s pretty much what happened in the Douglas case.
The first independent counsel, appointed by the vice-chair of the CJC’s judicial conduct committee, Neil Wittman, was Guy Pratte.
Even before the hearing began, Pratte had reason to be concerned: In a ruling, the inquiry committee had ordered him to present “the strongest case possible” against Douglas.
Pratte objected, noting his role was to act impartially and in the public interest, not as a prosecutor or hired gun.
He was also directed to add to the formal “notice of allegations” Chapman’s complaint, though it had not been referred to the inquiry panel by the review panel.
(Chapman, as his testimony at the hearing revealed, is a deeply suspicious, highly litigious man who once sued his own mother and who has a criminal record for arson, theft and uttering threats under his old name — all of which rendered him a rather unreliable fellow in whom to root a complaint of wrongdoing that could see Douglas lose her job.)
The inquiry panel hired George Macintosh as its own lawyer, called committee counsel, and Macintosh was quickly mired in a new controversy.
Even as the inquiry panel told him on the q.t. to instruct Pratte and his cocounsel to “tone down” a determined but hardly harsh cross-examination of Chap- man, it directed Macintosh to so aggressively cross two witnesses whose evidence was supportive of Douglas — King and lawyer Michael Sinclair, the managing partner of the firm where Douglas, then a lawyer, and King both worked — that Block demanded the committee recuse itself because it was biased against the judge.
The committee refused, evidence continued under protest, and the hearing adjourned as scheduled.
But by August, the thing was wholly off the rails: Both Pratte and Block separately applied for judicial review of the panel’s decision, with Block asking that the inquiry be stopped in its tracks (that was the court proceeding this week).
A week later, Pratte abruptly resigned.
A new independent counsel was retained, and one of her first acts was to withdraw the application for judicial review that Pratte had filed.
It was when Block sought to get his letter of resignation — so she could see why he quit, though everyone who was at the hearing could have guessed — that the CJC asserted solicitor-client privilege for the first time, refusing to disclose the letter on the grounds that it was privileged.
With the judicial review application looming in Ottawa this week, last week the five-member inquiry panel abruptly resigned in what in a real-world context looked like a snit — a pre-emptive snit at that.
In their 11-page letter, the three judges and two lawyers of the inquiry panel complained that “judges are not entitled to a process that includes unlimited steps and interlocutory privileges for the judge at public expense.”
But since there is no appeal from an inquiry panel decision, it’s hardly a shocker that a judge would fight tooth and nail at every stage of it for a fair shake.
Judge Mosely didn’t indicate Friday when he would release a decision, only that it would need to be in both official languages, which usually tacks on an extra month.
Norman Sabourin, the CJC’s executive director and general counsel, couldn’t say how fast a new inquiry panel could be appointed, only that it’s “likely” there will be one and that it takes time.
All this unfolds as in the background the federal government has moved to criminalize the non-consensual distribution of “intimate images.”
There are many involved in the Lori Douglas case, starting but not ending with her husband and Chapman, who have had a go at that sort of shameful conduct.