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 J A N U A R Y 2 0 1 6 29 every day. Eventually, she was able to forgive him. "I knew I would either kill him or I would kick him out," she says, noting she ended up forgiving him. "I did forgive [him] because I primarily thought it was for my benefit to do so." Throughout the process, Douglas also worried about the impact of the case on her young son, particularly in regard to his relation- ship with King. She also worried about others teasing him at school, but "apparently, it never happened." Douglas, of course, isn't the only person to express concern about what happened to her and question whether her circum- stances merited a disciplinary proceeding. "People could not seem to get through their heads that she was a victim," says the Manitoba judge who asked to remain anonymous. "People got caught up big time with, 'She's a judge. What's the perception of the judiciary?' Judges are human beings and they do what they do." Osgoode Hall Law School dean Lorne Sossin also criticizes the "unsavoury and unnecessary targeting of Lori Douglas." In his view, the proceedings against Douglas suggest the judicial council has yet to catch up to the realities of social media, the changing perceptions around cyber bullying, and the posting of people's images online without their permission. "That seemed to be entirely lost on the CJC," he says, citing the "overwhelming support" for Douglas as a victim of cyber harassment. Fineblit also has his concerns about the notions of judicial pro- priety at the heart of the case. "To me, it makes a statement about what values we hold about people on the bench," he says. "They all, I hope, had full and complete life experiences. There are judges on the court who have had bitter divorces and all kinds of experiences." Still, he says there were reasons for the judicial council to consider the case. "I don't argue with them considering the issue," he says. "It's a legitimate issue for consideration." Former Supreme Court of Canada justice John Major also has his criticisms. "The length of the hearing, the squabbling . . . I think you could say it was badly handled," he says. "It's the type of thing that I think could have been held less publicly and maybe taken a day." He, too, questions the need for the hearing in the first place. "What is it she did that merited an investigation? An almost puri- tanical view of the whole thing seemed to take over," he says, noting his disagreement with the notion that the photos harmed her cred- ibility as a judge. "I just don't think that's sufficient reason to put her through the ordeal that she was in." Privacy, of course, was a key issue in the case given the allega- tions and the notion in some quarters that they didn't merit a public hearing. While Douglas would certainly say they didn't — "I don't disagree with the privacy of it," she says of the judicial council's privacy protocols at the early stages of a complaint — the case did illustrate the tension between the notion of protecting judges from spurious complaints and the need for transparency when it comes to questioning judicial conduct. In Ontario, defence lawyers have expressed outrage over the Ontario Judicial Council's decision to withhold much of the information surrounding a complaint against Justice John Ritchie by the Criminal Lawyers' Association. The allegations in that case differ in that they claim Ritchie has failed to conduct his proceedings in a judicial manner, and in this case the matter didn't proceed to a hearing following an arrangement to have him take educational courses. The Toronto Star and the association have been calling for full disclosure of the case, citing the public interest and insisting it should be a matter of public record. Iris Fischer, a partner at Blake Cassels & Graydon LLP who acts for the Star, says disclosure is important when it comes to proceed- ings against judges and calls the Douglas matter an "outlier." "I think it's dangerous to consider changing basic principles" on the basis of an outlier, she says. She cites a more recent case, the Canadian Judicial Council's decision to review the conduct of Federal Court Justice Robin Camp over his comments in a sexual assault case, as an example of why disclosure matters. "To me, that really exemplifies the impor- tance of public scrutiny," she says, noting the complaint quickly became available online with Camp himself issuing an apology after the judicial council proceedings came to light in November. Fischer adds that with disciplinary complaints against other professionals being public, it's important to hold judges to a similar standard. "It's very easy to feel sympathy for Lori Douglas, and I think many people do," says Fischer, suggesting that the alterna- tive of keeping matters secret wouldn't be any better. "The public wouldn't be understanding why the council ruled as it did." And, she adds, judicial councils have protocols for keeping matters confidential, "on a high threshold," after balancing the arguments in favour of such an order versus its impact on matters such as the right to free expression. "There are processes in place for that," she says of the confidentiality option. While Douglas has now retired from the bench on a reduced pension after reaching 10 years of service last spring, she remains angry and says she's unhappy with some of the things that have transpired under an agreement to end the case. The deal came about as she was getting ready to face a resumption of the hearings in 2014 when, she says, Reynolds mentioned the option of retiring. "I just couldn't take it anymore," she says of the prospect of more hearings. "It's a compromise I can live with, but I'm not satisfied at all." She notes the agreement means she gets a "much-reduced pen- sion" and that she "didn't know I was even entitled to retire until Molly [one of her counsel] told me." Much of her lingering rancour focuses on two things. First, she says the judicial council didn't allow her to issue a statement she had prepared at the time in which she noted she had "endured, in silence, the media storm and the personal invasions of my privacy occasioned by the CJC process, particularly surrounding the two public inquiries struck and even prior to those investigations." Second, she says, the judicial council took a long time to return the photos that were at the centre of the case. "He took his sweet time about it," she says of Sabourin. Torys destroyed them after it took a month to get them back, she notes. Beyond that, Douglas says she misses being a judge. "I loved my job," she says. In fact, one of the themes that arises repeatedly in talking to people about Douglas is the notion that many felt she was a very good member of the family court bench. "The result is they ruined an exceptionally capable judge's career," says Bill Gange, the lawyer at Winnipeg's Gange Goodman & French who acted for King during Chapman's legal proceedings against him. Douglas was an "outstanding family division judge," says the Manitoba judge who asked to remain anonymous. "This is a story in which there are no winners, and she's a big loser."

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