The often-delayed judicial review into Court of Queen's Bench Judge Lori Douglas could see witnesses who've already testified compelled to take the stand a second time.
That's if the misconduct hearing ever gets going again.
The request was recently made by Montreal lawyer Suzanne Cote, who was hired by the Canadian Judicial Council last September as the replacement independent counsel.
Cote was quoted in a recent Lawyers Weekly article as saying she wants witnesses who have already testified to re-attend the hearing so she can ask them questions herself as transcripts of their earlier testimony are not enough.
Cote told the Free Press she's prepared to subpoena those witnesses, who include Douglas's husband Jack King, complainant Alexander Chapman and former Manitoba Court of Appeal Justice Martin Freedman, who chaired the Manitoba judicial appointments advisory committee that cleared Douglas for appointment to the bench.
"I'm the new independent counsel and I think in my role I have to start from fresh," Cote said Friday. "Since I have this duty to be independent, it's important for me not only to read the transcript of what somebody has already said, but also to see that person.
"I need to make up my own opinion about the facts, which is why I need to see the witnesses."
The five-member panel of the Canadian Judicial Council is looking at whether Douglas should be removed from the bench. The panel, chaired by Alberta Chief Justice Catherine Fraser, adjourned last July when Douglas's counsel asked its members to recuse themselves for reasonable apprehension of bias.
The Douglas case has been dragging on for almost three years and is now tied up in the Federal Court of Canada.
In the summer of 2010, Chapman filed a complaint with the CJC accusing Douglas of sexual harassment. Chapman alleges King sent him nude photos of his wife and wanted Chapman to have sex with her, all while King was representing Chapman in a divorce case.
King has admitted to giving Chapman sexually explicit photographs of his wife that were posted on the Internet, but Douglas has denied any knowledge of the situation.
King's law firm paid Chapman $25,000 to settle the complaint, made in 2003. Douglas was appointed to the bench two years later. Late last year, an appeal court ruled Chapman had breached a confidentiality agreement when he went public in 2010. He was ordered to repay the $25,000 and pay more than $7,000 in King's legal costs.
Among the issues raised in the judicial hearing was whether Douglas told the committee vetting her judicial application about the incident. She has said she did. She has been on paid leave from the bench since 2010, pending the outcome of the inquiry, collecting more than $315,000 annually, according to a Lawyers Weekly article.
Most recently, a Federal Court said Federal Justice Minister Rob Nicholson must respond to applications seeking to end the judicial review. The decision paved the way for another Federal Court hearing to determine if the Canadian Judicial Council inquiry into Douglas's conduct can proceed. Before that, however, the court must first decide on a motion to stop the hearing from resuming July 29 until the full case to stop the review can be argued. That motion is set for July 3.
Cote replaced former independent counsel Guy Pratte, who quit last year. C¥t© said the additional cost of recalling witnesses should not be significant as only six people have testified. The inquiry has already been estimated to cost in the tens of millions of dollars once finished.
"It is not like you would add six weeks of work to this process," Cote said. "What is keeping us more busy presently is all the proceedings at the Federal Court. I'm not saying there won't be any additional cost associated with the fact we want to hear again from these witnesses, but this I think is not major."
Chapman's Toronto lawyer, Rocco Galati, told the Free Press he's opposed to Cote's request.
"It's irrational," he said. "It's not the way our system works."
Galati said Cote should be able to work sufficiently from transcripts to bring herself up to speed.