Douglas inquiry heads to court

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Justice Lori Douglas

OTTAWA -- An inquiry determining the fate of Manitoba Justice Lori Douglas is headed for a showdown in Federal Court.

In separate court motions filed Monday, both Douglas's lawyer, Sheila Block, and Guy Pratte, the independent counsel hired to present the case to the inquiry, are asking the Federal Court of Canada to intervene.

The inquiry will decide whether Douglas should remain on the bench after allegations were made public she and her husband, Jack King, together sexually harassed Alex Chapman, one of King's former clients, then paid him to keep quiet. Douglas denies any wrongdoing, saying only King was involved with Chapman, and she did reveal the incident when she was being vetted for the bench.

It is just the ninth time in 40 years the Canadian Judicial Council has taken a complaint against a judge to an inquiry.

Block wants the court to toss the inquiry, arguing the five committee members who will determine Douglas's fate have shown they are biased against her. The committee is made up of three provincial chief justices and two lawyers, all appointed by the Canadian Judicial Council.

In her motion, Block says the committee instructed its lawyer, George Macintosh, to ask questions of King and King's former law partner, Michael Sinclair. Block argues Macintosh's questioning was "aggressive and argumentative" and included "sexist and insulting references" and "misstatements and distortions of the evidence."

She also says bias was shown when the committee didn't rein in Macintosh from aggressively questioning King, but did rein in Pratte when he was aggressively questioning Chapman. The committee also refused to let Douglas's lawyer question Chapman's credibility.

Block argued with such proof of bias against her client, the inquiry cannot continue and the entire thing should be quashed, with Douglas's legal costs covered.

She asked the committee to end the inquiry the day after King was cross-examined in July but the committee rejected that request.

Pratte is asking that evidence submitted under questioning by Macintosh be struck from the record and Macintosh be prevented from asking further questions at the inquiry. Pratte noted it is against judicial council policy for the committee's lawyer to participate in the hearings and by instructing their lawyer to intervene, the committee "created the risk of an appearance of bias."

While Pratte's motion does not call for the inquiry to be terminated, legal sources say this motion is unprecedented and by asking for the evidence submitted through Macintosh's cross-examinations to be stricken, Pratte is indirectly supporting Block's contention the questioning suggests bias against her client.

The committee hasn't responded directly to the latest court motions but on Tuesday morning, it released a 22-page ruling giving further reasons why it rejected Block's request to toss the inquiry in July. The ruling says inquiry committee judges have both a right and a duty to question witnesses both directly and through a lawyer representing them. In particular, it says 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 that is not corroborated.

That is what happened in the Douglas case, the committee ruling says, noting several things King said in his testimony warranted further questioning. The committee said he didn't fully answer all the questions asked of him, some things he said were inconsistent, improbable or incomprehensible, and certain words he used were unclear to the judges.

The committee said it also took Block's objection to the questioning as "inappropriate" to mean the questions were irrelevant, and they did not agree.

The hearings have been adjourned indefinitely. Judicial council executive director Norman Sabourin did not respond to calls Tuesday.

mia.rabson@freepress.mb.ca

Republished from the Winnipeg Free Press print edition August 22, 2012 A5