Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A r C h 2 0 1 5 29 have received complaints. Most go away with a letter from the judge or look at the transcripts, but although none would go on the record, many judges still resent a call from the CJC to account for themselves. LURCHING THROUGH THE SYSTEM The progress of the Douglas case before the CJC has been publicly dissected at length. Her now-deceased husband, Jack King, who was also a lawyer, posted private boudoir photos of the future judge on the Internet, without her knowledge or consent, in an attempt to interest another man in his wife. That other man, Alex Chapman, a divorce client of King's, was described in the press as "a deeply suspicious, highly litigious man who once sued his own mother and who has a criminal record for arson, theft, and utter- ing threats." Chapman had agreed to a settlement of $25,000 from King in 2003 for harassment, but in July 2010 filed a complaint with the CJC that he had been sexually harassed by Douglas. For the next four years it would lurch through the system. After the review stage, Douglas faced four grounds for removal: that she had allegedly sexually harassed Chapman in 2003; that she had altered a diary entry relevant to the facts; that there were nude photos of herself; and that she had not disclosed in her application the existence of the photos as some- thing that "could reflect negatively on yourself or the judiciary." Without a hint of irony, the CJC's official notice to Douglas observed that the offend- ing photographs "could be seen as demeaning to women." As the sad details emerged, public and media sympathy began to tilt in Douglas' favour as more was learned about the complainant and her hus- band's behaviour. Testimony support- ed that Douglas was unaware of her husband's activities, and the chair- man of her original judicial appoint- ments committee was not only aware of the issue but said he had informed the other members. Many were beginning to suspect what was really unfolding was a re- victimizing of a woman judge by an embarrassed conservative judiciary where Douglas was being punished for the non-consensual violation of her private life by a manipulative husband and a decidedly vindictive complain- ant. Numerous legal and social observers said the case was more about a pearl-clutching response to revenge porn than fitness to serve. Professor Susan Drummond of Osgoode Hall Law School commented that a judge like Douglas was being victimized twice — once by her husband for betraying a trust in publishing private photos without consent, and again by the CJC invading her privacy by insisting on looking at and judging photos never intended for anyone else's eyes. As the battle at the CJC spilled out into the public, commen- tators observed the aggressiveness with which the council pur- sued the removal of Douglas from the bench. Not surprisingly, Douglas pushed back hard against the CJC. The system is set up so there is no middle ground or compromise discipline, except resignation by the judge, something critics and commentators like the CBA have pointed out as a major problem. Douglas and her counsel Sheila Block alleged there was a rea- sonable apprehension of bias against her by the CJC panel. The hearings stalled in July 2012, and three parties, including CJC- appointed independent counsel Guy Pratte, filed applications for judicial review in the Federal Court. It was the objection of its own independent counsel that stung the CJC the most. When the inqui- ry committee, which had been at loggerheads with Pratte, decided to appoint and use its own lawyer rather than Pratte to "aggressive- ly" cross-examine witnesses at the hearing, Pratt requested judicial review by the Federal Court. In a letter dated Aug. 20, 2012, Pratte told the CJC's executive director Norman Sabourin that treating independent counsel as prosecutor was "risking tainting the entire process with an appearance of bias." A week later he quit. ROLE OF INDEPENDENT COUNSEL KEY The key role of independent counsel was at the centre of the debate and perceived fairness of the Douglas inquiry. Pratte objected to being directed by the inquiry panel, noting his role was to act impartially and in the public interest, not as a prosecutor or hired gun. Earl Cherniak, a former CJC independent counsel, agrees. He said in an inter- view that, "independent counsel is just that. It has no client and is acting in the public interest, not under the direction of the CJC." The inquiry panel also claimed solicitor-client privilege with its independent counsel regarding instructions and communications, particularly the sharp exchange of letters with Pratte in disputing his role. At the Federal Court, Justice Richard Mosley (of the "Robocall" case) agreed that independent coun- sel was indeed supposed to be inde- pendent and not the CJC's lawyer, and as such not subject to solicitor- client privilege. However, Mosley also found the assertion of solicitor-client privilege had not in and of itself tainted the CJC proceedings against Douglas with bias. Between the filing and hearing of the application before Mosley, the inquiry committee — consisting of Alberta Chief Justice Catherine Fraser, Newfoundland and Labrador Chief Jus- tice Derek Green, P.E.I. Supreme Court Chief Justice Jacqueline Matheson, Barry Adams, and Marie-Claude Landry — surprised everyone by resigning en masse on Nov. 20, 2013. In its reasons for resignation, the panel complained of the delays and court applications, asserting the Federal Court had no jurisdiction over its proceedings. On March 28, 2014, Mosley ruled otherwise, but the CJC panel's 10-page reason for resignation are remarkable in the bitter frustration it exhibits at being thwarted. In places it reads more like a party's affidavit, contradicting assertions "I don't remember them ever having a session saying: 'In light of what we've done in the last five years where can we improve?' They need to have that self-examination, and from what I know, they're not doing that." allan h. WaChoWiCh, former chief justice, alberta Court of Queen's Bench

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