No end to the circus

Philip Slayton
Is there no end to the Lori Douglas circus, an apparently interminable saga of personal and institutional misjudgment?

In case you’ve spent the last few years in a cabin in the woods cut off from what passes as civilization, or on Mars, let me explain in brief what’s been going on.

Lori Douglas is the associate chief justice of Manitoba. Before she was appointed to the bench in 2005, salacious nude photos of her were posted on the Internet by her husband, Jack King, apparently without her knowledge, although she later discovered what he had done. It is alleged that King, a practising lawyer, also tried to arrange for Douglas to have sex with one of his clients, who then claimed he had been sexually harassed.

To cut a long and depressing story short, the Lori Douglas affair ended up before the Canadian Judicial Council, the national body charged with disciplining judges. That is when it went from being a titillating narrative of questionable individual conduct to an alarming example of judicial dysfunction. This past November, after more than two years of messing about, members of the CJC inquiry committee considering the complaint against Douglas resigned en masse, giving angry written reasons for why they were quitting. Back to square one.

The doomed inquiry committee was appointed in September 2011. It wasn’t long before Douglas’ counsel, Sheila Block, went to Federal Court alleging the committee was biased and seeking judicial review of its proceedings. The law seemed to require the commission be represented by the attorney general of Canada, but the attorney general had a problem. How could he get involved at this early stage when, as minister of Justice, he would eventually have to deal impartially with the committee’s recommendation, perhaps asking Parliament to remove a sitting judge? Eventually, the attorney general announced he intended to “remain neutral” and take no position on the merits of Douglas’ judicial review application. Douglas and her various allegations were therefore, in effect, unopposed in Federal Court, and she obtained a stay of the inquiry committee’s proceedings.

In its resignation reasons, the committee castigated the attorney general. “The AGC’s decision to remain neutral means that the judicial conduct process and an inquiry committee’s role in it will never be able to be defended since this same conflict will arise every time a judge brings a judicial review application against an inquiry committee. . . . If the process is allowed to be sidetracked in this way, a knowledgeable public would think that a judicial conduct process has been created which is, by its nature, doomed to delay, wasted costs, confusion, inconsistency and perhaps, in the end, failure. And it would be hard to disagree with them.”

The committee members quit in a snit. They thought it was better for everybody — particularly them — if they left. If there were to be a new inquiry committee, they said, it would be pointless for Douglas to go ahead with judicial review of the prior committee’s proceedings. “It is ironic that the only way this Committee can meet the transparency requirements so essential for public confidence and inform the public of this critical flaw in the process is to resign but, regrettably, that appears to be the case.”

The public is entitled to be outraged by this shambles. No one comes out of it looking good. Who should we be mad at, and why? Douglas, for starters.
As I wrote in this column over a year ago, it is hard not to have some sympathy for her predicament, but it’s clear she’s too compromised to sit as a judge again. She should have realized early on that her position was untenable and the good of the justice system required her resignation. It was her duty to resign.

That, and perhaps only that, would have restored some faith in Douglas’ judgment and integrity.

Then there’s the CJC inquiry committee, chaired by Chief Justice Catherine Fraser of Alberta. The general view in the legal profession is the committee made a hash of things, losing control of its proceedings and leaving itself open to charges of bias. Block certainly thought the committee was biased, and it seems she was not alone. In August 2012, the committee’s independent counsel, Guy Pratte, a senior and respected lawyer, resigned. Word has it Pratte thought the committee was interfering with his independent status and taking an inappropriately aggressive attitude towards witnesses. Pratte’s lengthy resignation letter so far has not been made public.

And then there’s the law itself. The committee, inept as it seems to have been, had a point when it comes to judicial review of its proceedings by the Federal Court. It’s not even clear the Federal Court has jurisdiction over the committee, which is not an administrative tribunal, but has the status of a superior court given by the Judges Act. If the committee is subject to the Federal Court’s jurisdiction, then it should have proper legal representation by counsel it retains (as distinct from the independent counsel it appoints). Otherwise, as the committee noted, the likely outcome is “delay, wasted costs, confusion, inconsistency and perhaps, in the end, failure.” Time for the law to be clarified or changed.

All this may seem like inside baseball, too esoteric to matter much to the general public. Not so. The Lori Douglas affair makes the judiciary look bad to the person on the street, and that’s a big deal. An individual judge who should depart is clinging on for dear life (and a fat paycheque). The risqué facts have attracted widespread media attention. There doesn’t seem to be any quick and fair way of considering whether a judge should be disciplined. The law looks like an ass.

There are no heroes in this tawdry tale.

Philip Slayton is president of PEN Canada, an organization of writers that protects and promotes freedom of expression. Follow him on Twitter @philipslayton.

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