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Douglas’s lawyer headed to federal court to end inquiry

By: Mia Rabson

Posted: 08/21/2012 10:05 AM

Douglas’s lawyer says George Macintosh's questioning went too far and suggests the judges have already made up their mind. (FREE PRESS ARCHIVES)

OTTAWA – The five members of the inquiry committee deciding the fate of Manitoba Justice Lori Douglas today released a list of written reasons why it dismissed a call for them all to step down last month.

However, Douglas’s lawyer is now going to federal court to try and shut down the whole inquiry.

The committee – made up of three provincial chief justices and two lawyers – is deciding whether Douglas should remain on the bench after allegations were made public she and her husband, Jack King, together sexually harassed one of King’s former clients and then paid him to keep quiet. Douglas denies any wrongdoing, that it was her husbandand not her involved in the situation with his client, and that she did reveal the incident when she was being vetted for the bench.

Her lawyer argues the lawyer asking questions on behalf of the five committee members has overstepped his bounds, particularly in his questioning of King. On July 26th Sheila Block made a motion to have all five committee members dismissed, alleging they had already made up their minds about the situation. The committee dismissed that call July 27th but this morning released a more detailed ruling about their reasons.

The way this inquiry works is there is an independent lawyer charged with presenting the evidence in the case to the committee. Parties in the case, such as Douglas, also have lawyers who can ask questions of witnesses. But the judges on the committee also have their own lawyer who can ask questions on their behalf when they want further information. It is the questioning by that lawyer, George Macintosh, that Douglas’s lawyer says went too far and suggests the judges have already made up their mind.

In the 22-page ruling, the justices note the difference between an inquiry and a trial is in the former the judges on the inquiry committee are required to conduct an investigation to get at the truth whereas in a trial, a judge is there to hear the evidence submitted by the parties not to conduct an investigation.

"From a practical perspective what this all means is that the degree of intervention acceptable in an inquiry is greater than would be considered appropriate for a trial judge," they wrote.

They said inquiry committee judges have both a right and a duty to question witnesses both directly and through a lawyer representing them. In particular they say while ideally the information would all be ‘crystal clear’ after a witness is examined by other parties that is not always the case and the inquiry committee can, and should step in to clarify certain evidence. Clarification is likely needed in cases where there is a lot of contradictory evidence or evidence which is not corroborated.

That is what happened in this case, they say, noting several things King said in his testimony warranted further questioning. They said he didn’t fully answer all the questions asked of him, that some things he said were inconsistent, improbable or incomprehensible, and that certain words he used were not clear to the judges.

The judges say they also took Block’s objection to the questioning as "inappropriate" to mean the questions were irrelevant which they did not agree with.

In her motion to federal court Monday, Block clearly sees the questions as more than just irrelevant, calling them "aggressive and argumentative questions, sexist and insulting references, misstatements and distortions of the evidence and attacks on (Douglas's) character and credibility."

She is asking the court to shut down the entire inquiry.

Guy Pratte, the independent lawyer presenting the case, also filed a separate motion in federal court, though he asked only that Macintosh be prevented from asking further questions and that previous questions and the answers they solicited be stricken from the record.

mia.rabson@freepress.mb.ca