Decision this morning on requests to end 'poisoned' Douglas probe

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WHAT INQUIRY CHAIRWOMAN CHIEF JUSTICE CATHERINE FRASER SAID: “Rather than have all five (inquiry panel) members ask questions, we decided that we channel these questions through the commission counsel... to understand exactly what the witness’s final evidence is.” (TREVOR HAGAN / WINNIPEG FREE PRESS ARCHIVES) Photo Store

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WHAT SHEILA BLOCK SAID: “The committee should stand down and terminate these proceedings... the continuation of this hearing is now poisoned. Continuing brings the Canadian Judicial Council’s administration of justice into disrepute.

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WHAT GUY PRATTE SAID: “The appearance is incontestable that it was a strong and co-ordinated attack on the witness... If inquisition is to be done, it has to be done by independent counsel. You cannot descend into the arena.” (FRED CHARTRAND / THE CANADIAN PRESS ARCHIVES)

Judge Lori Douglas will learn this morning whether the judicial inquiry into her conduct will fold or continue as what her lawyer has slammed as a "poisoned" probe.

In the wake of withering cross-examination on Wednesday from the Canadian Judicial Council inquiry panel's own lawyer, Douglas's lawyer Sheila Block called Thursday on the panel to fold the entire inquiry for revealing "one-sided views."

Minutes later, the inquiry's independent lawyer, Guy Pratte, threatened to resign over the same concerns. "At a minimum, the way this has been conducted this far, that has to stop," Pratte said, questioning if the panel had sufficient faith in his ability to question witnesses.

"The appearance is incontestable that it was a strong and co-ordinated attack on the witness... If inquisition is to be done, it has to be done by independent counsel. You cannot descend into the arena," Pratte said.

The latest dose of drama in the hearing that has already produced no shortage of legal theatre saw the dispute over the inquiry's past and future delay the start of testimony for nearly two hours Thursday morning. The inquiry panel then spent about 30 minutes hearing arguments from Block and Pratte before adjourning for the day.

The panel will rule on whether to continue or suspend the hearings. Block warned anything short of calling off the inquiry would not suffice, as the proceedings were tainted when panel lawyer George Macintosh grilled Douglas's husband, Jack King. She also suggested she may seek outside judicial review for the complaint. "It is too late to right the ship," she said.

The five-member inquiry panel is allowed to ask questions in order to clarify ambiguous evidence and can channel these through its lawyer, though in most cases an inquiry-panel lawyer would not ask questions.

But Macintosh and King butted heads several times during the Wednesday afternoon cross-examination, as Macintosh attempted to nail down possible discrepancies in King's testimony. A particular target was King's insistence Douglas was not aware of what had become of the sexually charged images he had taken of her.

"Now you'll accept that when most people get their picture taken, they understand there will be a picture...Did you ever say, 'Don't worry, there's no film in (the camera)?' " Macintosh asked. King replied he did not.

"So you and she knew that there were probably 36 pictures that came from the 36 pictures you snapped of her?" Macintosh said.

Those photos are at the heart of the inquiry, as King splashed some of those photos on an Internet pornography site. In 2003, he also showed them to his then-client, Alex Chapman, in an attempt to entice the man into trying to "seduce" Douglas for a possible threesome.

Chapman and King settled that year for $25,000, which King borrowed from his wife. But Chapman breached that agreement in 2010 when he took his story public, triggering a storm of publicity.

King later pleaded guilty to professional misconduct. He was ordered to pay the Law Society of Manitoba $13,650 but retained his licence to practise law.

The Canadian Judicial Council inquiry was struck to examine four questions: whether Douglas was complicit in King's harassment of Chapman; whether she fully disclosed the incident in her successful application for the bench; whether she hid information from the inquiry; and whether the scandal will hamper her ability to act as a judge.

Now, Block is concerned Macintosh's questions hinted at bias against Douglas by the panel -- or at least created the appearance they were biased.

Among other clashes during the course of questioning, Macintosh said he was suggesting to King "that (the settlement) payment of $25,000 was to protect her (Douglas)," despite King's protestations it was solely to protect his own reputation.

And when King, who had several times offered little in way of responses, told Macintosh he had answered one question several times before, Macintosh responded with a raised eyebrow. "I'm never certain when we get to a complete end," he said.

On Thursday morning, Pratte decried this "prosecutorial tone." If the panel had questions it felt uncomfortable asking a witness, Pratte argued, it should ask him to raise them. But if the panel lacked faith in him to do that job, Pratte said, he could not continue in his role as the inquiry's independent lawyer.

Pratte also noted witnesses were especially vulnerable to cross-examination from Macintosh. Since his questions are considered to be made on behalf of the inquiry panel, it may be more daunting for a witness to raise objections. The panel is scheduled to rule on the issue at 9:45 a.m. If the inquiry is not suspended, it may continue with witness testimony on the 10th and final day of the current hearing session.

The panel has proposed the hearings resume in September, at which time Douglas would likely be called to the stand.

melissa.martin@freepress.mb.ca

WHAT SHEILA BLOCK SAID:

"The committee should stand down and terminate these proceedings... the continuation of this hearing is now poisoned. Continuing brings the Canadian Judicial Council's administration of justice into disrepute."

WHAT GUY PRATTE SAID:

"The appearance is incontestable that it was a strong and co-ordinated attack on the witness... If inquisition is to be done, it has to be done by independent counsel. You cannot descend into the arena."

WHAT INQUIRY CHAIRWOMAN CHIEF JUSTICE CATHERINE FRASER SAID:

"Rather than have all five (inquiry panel) members ask questions, we decided that we channel these questions through the commission counsel... to understand exactly what the witness's final evidence is."

Republished from the Winnipeg Free Press print edition July 27, 2012 A3