Judge Lori Douglas. Photo: Handout/Files The Canadian Judicial Council inquiry into the conduct of Manitoba Associate Chief Justice Lori Douglas was little more than a disgraceful schmozzle.
And the group now saying that, albeit in careful lawyerly language, is none other than the Canadian Bar Association, the national body which represents 37,500 lawyers, law teachers and students across the country.
After roaring off the rails in the summer of 2012 after just two weeks of hearings, the Douglas inquiry remains in limbo, with the CJC just this spring launching an appeal of a Federal Court of Canada decision, no date set for that, and no estimate either of when the new reconstituted inquiry committee, after the first one resigned last year, may get going.
The CBA prepared a lengthy submission in response to the CJC’s review of its own processes, launched this spring.
In the productions of neither body is the name Lori Douglas ever mentioned, but there’s little doubt that it’s the failed inquiry into her conduct which is driving the ship of reform.
Judge Douglas, a recent widow after her husband Jack King died April 29 this year, is the so-called “naked judge.”
In mid-breakdown in 2003, King posted intimate pictures of her on a hard-core website and tried to solicit a client, Alex Chapman, to have sex with her.
Douglas has always maintained she knew nothing of what her husband was doing, and didn’t agree to it, and the evidence heard at the abbreviated hearing supports her.
Chapman first shook King down, when both he and Douglas were practising family law at the same Winnipeg firm, for $25,000 for his silence and a pledge to destroy the pictures.
But in 2010, his natural conspiratorial bent encouraged by his own lawyer and Douglas by then a rising star on the Manitoba bench, Chapman launched for the first time a complaint against her.
The intimate photographs mysteriously surfaced again, were shown to the CBC, and set off a media firestorm.
A five-member “inquiry committee,” composed of three judges and two lawyers, began hearings in Winnipeg in July of 2012 into four allegations against Douglas.
The most serious were that she knowingly participated in the plan to entice Chapman into having sex with her and that she failed to disclose the scandal when she applied to the bench.
A finding against her could see her deemed unfit and removed from the bench.
And that’s a big part of the problem with the CJC process, the CBA says — removal, this “most drastic of all possible remedies,” means committees may be reluctant to ever find misconduct or will over-punish judges who may be guilty of some misconduct but are salvageable.
Where provincial judicial councils, which govern provincially appointed judges, may impose a wide range of sanctions — warnings, reprimands, suspensions and apologies to complainants — the CJC can’t take any other disciplinary action but recommend removal.
The lawyers’ group made 16 recommendations, many of which appear born in what happened in Winnipeg.
For instance, the CBA urges the CJC to “limit the role of committee counsel to an administrative function” and say such counsel shouldn’t question witnesses or draft reasons for the committee.
At the Douglas hearings, commission counsel George Macintosh so aggressively cross-examined King and a former law partner that Douglas’s lawyer, Sheila Block, said his questioning revealed the committee’s “animus and a bias” against the judge and demanded the committee recuse itself.
The committee then issued a ruling that it could instruct Macintosh, which led to Guy Pratte, the inquiry’s “independent counsel,” taking the unusual step of applying for judicial review of the committee’s decision.
There were actually three applications for judicial review because of that single committee ruling — one each from Pratte, Block for Douglas and Chapman’s lawyer.
At the heart of them all was the well-known principle that independent counsel like Pratte don’t take instructions from the committee and are supposed to bring out the evidence as fairly as possible in accordance with the public interest.
Commission counsel like Macintosh, by contrast, are supposed to merely advise the committee.
As correspondence released only this spring shows, the committee strongly objected to Pratte’s action and even suggested it might not pay for the judicial review.
That led to Pratte suddenly resigning in August of 2012.
And inferentially through its recommendations, the CBA appears to completely agree that Pratte acted honourably and properly.
Another example: The CBA recommends that complainants such as Chapman should only rarely be granted “standing” as a party to the inquiry and even on those rare occasions, shouldn’t necessarily get the right to call or question witnesses.
And that’s because, the CBA says, “the purpose of the inquiry is not to vindicate an individual complainant’s rights or interests, and the review of the judge’s conduct is not limited to a single complaint.”
In other words, granting a complainant standing lends the proceeding an unnecessary personalized flavour.
In the Douglas proceeding, Chapman was granted limited standing, a limited right to ask questions and funding for his lawyer.
And though the process must be transparent — for public confidence — where removal isn’t the outcome, the CBA says, “judges must be able to return to their judicial duties and command the necessary respect to carry out their office … The public spectacle of a ‘judge on trial’ serves to undermine the judicial office,” it says.
That’s just what happened in the Lori Douglas inquiry: Nobody who sat in on those hearings left feeling anything but dirtied up. It didn’t have to be that way, and God willing and the CBA’s recommendations taken to heart, it won’t happen again.
cblatchford@postmedia.com
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