The Canadian Judicial Council panel’s ruling released Aug. 20, states that questioning by the committee’s counsel, George Macintosh, of witnesses Michael Sinclair, former managing partner of Douglas’ former law firm, and of her husband Jack King, “created a reasonable apprehension of bias on part of members of the committee.”
Douglas’ counsel Sheila Block claimed in late July that the committee, led by Alberta Chief Justice Catherine Fraser, had prejudged the matter before it was concluded and sought to have its members disqualified.
At the time, independent counsel Guy Pratte said he agreed with Block and threatened to resign if the inquiry committee continued to use Macintosh to aggressively cross-examine witnesses.
The inquiry will decide if Douglas should be removed from the bench. In September 2010, Alex Chapman, a client of the judge’s husband, launched a complaint that claimed King showed him nude web photos of Douglas performing sexual acts and pressured him to have sex with her. Douglas has been on leave from the court since the complaint was sent to the CJC.
On July 27, the committee dismissed Block’s motion for a number of reasons, including:
- When conducting an inquiry, the inquiry committee is searching for the truth.
- An inquiry is different from a trial; fairness can’t be determined by what’s normally allowed in a trial as the degree of intervention in an inquiry is greater.
- An inquiry committee has the right and duty to question witnesses through its counsel, and that questioning should take place at the end of questioning by all counsel. If the inquiry committee asks questions through its counsel, other counsel should be given the opportunity to ask follow-up questions.
- The inquiry committee has the authority to question witnesses, including asking “obvious, probing, difficult or challenging questions.”
- What is inherent in the inquiry process or allowed by legislation can’t be biased or create bias in the mind of a reasonable observer.
- In determining what is fair in an intervention, you must consider the context of the inquiry.
“We have not prejudged any issues in this inquiry or any person’s credibility. Our minds remain open to persuasion.
“Accordingly, we are not satisfied that we are disqualified from sitting on this inquiry, and we decline to recuse ourselves. We might add that we regard the completion of our mandate to be a matter of public duty. It is crucially important that a matter of such social significance and public interest be carried out fairly to its conclusion according to law, and be seen to do so.”