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Inquiry appears to be accident prone

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WINNIPEG — At one point last week, Alex Chapman, the mercurial complainant in the case against Manitoba Associate Chief Justice Lori Douglas, abruptly announced that his interview with the Canadian Judicial Council investigator had been secretly taped by a former friend wearing "video glasses," bolted from the witness stand, retrieved said video and demanded it be immediately watched.

(Over the lunch break that day, lawyers in the case viewed the video, but no further mention was made of it, and it was never played.)

At an earlier turn last month, the CJC duly posted what’s called a joint document brief on its website, only to discover a few days later — oops — that one of the documents bore Judge Douglas’s personal address and phone number.

(Given that the complaint against Judge Douglas centres around her own husband’s betrayal of her by posting intimate pictures of her on a porn site, it was another grating invasion of the last vestiges of the judge’s privacy — not to mention the troubling fact that years ago, under another name, Chapman had been convicted of arson.)

In May, the senior independent counsel Guy Pratte was so distressed by a ruling of the CJC inquiry committee now probing Judge Douglas’s conduct — a ruling that would have handcuffed him in his duty to fairly present all the evidence, both pro and con Judge Douglas — that he threatened to quit.

And throughout the two weeks the committee has been hearing evidence, the microphones in the hearing room at Winnipeg’s Federal Court building have only barely worked and have switched on and off at will so often that now there are three different mikes facing anyone who takes the witness stand here, because no one really has a clue which, if any, may kick in.

But if it has been a star-crossed process from the get-go, if the temptation is to assume the CJC — that august body of chief justices from across the country who receive complaints about federally appointed judges — can’t pull off the proverbial one-car funeral, let alone see that one of its own gets a fair shake, things got seriously worse on Thursday.

That was when Sheila Block, Judge Douglas’s lawyer, asked the five-member committee headed by Alberta Chief Justice Catherine Fraser to recuse itself — it means withdraw — on the grounds it was biased against Judge Douglas — and halt the hearing.

The heart of Block’s argument is that the panel had directed its own lawyer, George Macintosh, to aggressively question two witnesses whose testimony supported Judge Douglas’s position that she knew nothing of what her husband Jack King was doing nine years ago.

Both witnesses — King, whose testimony ended Wednesday, and Michael Sinclair, a former law partner of King and the judge both — were in effect cross-examined twice, once by Pratte or his associate Kirsten Crain, and once by Macintosh.

Macintosh has no client here; commission counsel’s role is usually to advise the panel. As Block told the panel on Thursday, "This is not about throwing Mr. Macintosh under the bus: He is you."

And, just as a judge presiding over a trial is not to "enter the fray" or jump "into the arena" of adversarial legal jousting, but rather remain impartial and dispassionate, so is the panel in the judge’s role here not supposed to get down in the muck with the lawyers.

As for Macintosh’s questions, Block said, they "were improper and inappropriate," revealing what appear to be the panel’s "one-sided views" and "an animus and a bias" against Judge Douglas. "It raised at least an appearance of bias," she said.

Block also told Chief Justice Fraser that when she told King that Macintosh would be asking him followup questions on behalf of the panel about a few matters that needed clarification, it was "misleading."

"These were not followup questions," she snapped.

She said the inquiry was heading "on a path that could lead to a joint address in Parliament. It has extremely serious ramifications, constitutionally, for the independence of the judiciary... this process cannot continue."

If the inquiry committee were to conclude that Judge Douglas can’t continue on the bench, and were its recommendation accepted by the larger CJC, the matter would then be sent to the federal justice minister.

Then the recommendation to remove would have to be approved by a majority vote of a joint session of the House of Commons and Senate.

Removing a judge from the bench, in other words, isn’t easy, nor is it meant to be: Judges have what’s called security of tenure precisely to preserve their independence from the political winds of change and the governments which may yield to them.

Interestingly, the panel appeared to get wind of Block’s motion early Thursday.

Instead of starting as planned, the three judges and two lawyers were two hours late arriving in the hearing room, at which point Chief Justice Fraser read aloud a curious statement which appeared to be part apologia for the events of the day before and part pre-emptive action for what was to come.

The panel, she said, was "engaged in a search for the truth" and recognized the process must be fair to Judge Douglas. Though she said commission counsel wasn’t usually "an active participate" in questioning, the panel had asked Macintosh to do so as a matter of efficiency. And his questions, Chief Justice Fraser said, "should not be interpreted" as any reflection of the panel’s thinking.

"We have not reached any conclusion," she concluded.

Block was un-mollified, and got to her feet with her request the panel withdraw. On Friday morning, the panel announced that it would continue its inquiry.

It was in 2003 that King was first accused by Chapman, a black man with a litigious past and present, of trying to get him into bed with the judge, who was then just a lawyer. Chapman soon signed a confidentiality agreement, purported to return the sex pictures King had either emailed him or directed him to find on the website, and accepted $25,000 to go away.

Though the scandal was widely known among the local bar and the judiciary, including some of those who pushed Judge Douglas to apply for the bench, it remained contained for about seven years.

King, to this day, considers it blackmail; Chapman, while agreeing he "played along" with King, says he did so out of fear that King wouldn’t finalize the divorce he was handling for him.

In 2010, however, apparently convinced Judge Douglas had interfered with the settlement of one of his lawsuits against the local police, Chapman went public — complained to the CJC about Judge Douglas, to the Law Society of Manitoba about King, and to the world at large via the CBC.

 

Christie Blatchford is a Postmedia News columnist.

 

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