Judicial panel abandons notion of fairness

WINNIPEG — The judicial inquiry underway here is becoming a bit of a gong show.

Nothing better illustrates this than what Sheila Block, the lawyer for Manitoba Associate Chief Justice Lori Douglas, did Wednesday in the middle of George Macintosh’s markedly aggressive cross-examination of Jack King, Judge Douglas’s beleaguered husband.

By this point, Macintosh, who represents the panel members and asks questions on their behalf, had again put the graphic pictures of his wife before King and suggested strongly that Douglas must have known that he was posting them online.

After getting to her feet and standing at her podium, Block said, "I am deliberately interrupting.

"I want to record my objection to these questions presently coming from the panel. They are improper and I object to them. We are here on four counts against Associate Chief Douglas."

Her emphasis was on the questions as having come from "the panel," the four judges and one lawyer who form the inquiry committee of the Canadian Judicial Council. It was a lawyerly way of suggesting that what she saw in Macintosh’s questions and approach — Macintosh is the instrument of the panel — was an inappropriate bias (towards King and by inference Judge Douglas) and an alarming unfairness.

It was not an ordinary objection, but then, the judicial inquiry into Judge Douglas’s conduct — and whether she participated in her husband’s sexual harassment of a black client of his named Alex Chapman — is not ordinary, either.

Ostensibly, the inquiry is probing whether Judge Douglas knew that her husband was posting intimate sex pictures of her on an XXX-rated website and advertising her there, and if she knew he was attempting to arrange a threesome with Chapman.

She has maintained she knew nothing. In his two days of testimony here, King has said the same thing.

The judge faces four allegations — that she took part in the harassment; that she didn’t fully disclose the scandal over the pictures during the judicial appointments process; that she altered an entry in her gardening diary which described a drinks encounter with her husband and Chapman as "nice" to "boring," and that the mere fact there were sexual pictures on the web means she is unfit to continue as a judge.

The panel, with Alberta Chief Justice Catherine Fraser as the chair, is supposed to be fair-minded and to hear the evidence gathered by independent counsel Guy Pratte and Kirsten Crain.

In fact, however, behind the scenes the panel and the independent counsel have wrestled over what counsel’s duties are — they say to conduct a full investigation and to present all the evidence, adverse and favourable to the judge, while the panel ruled that they should present only "the strongest case possible... against the judge" — such that Pratte appeared at one point to be close to stepping down.

It was Crain who questioned Chapman over four days last week.

While she was thorough, to my recollection, and though she didn’t press him hard on the plethora of inconsistencies in his evidence or his memory lapses, or call him a liar, she was fair.

Suffice to say, Chapman was at least arguably an unreliable witness with a tendency to florid emotional displays (of tears or anger) and unsolicited monologues, and it isn’t difficult to imagine he could have been pushed harder.

It was Pratte who questioned King this week.

He too was thorough, and while he was certainly aggressive, and more prosecutorial in manner than Crain had been with Chapman, he was also fair and courteous.

Then came Macintosh, an agreeable fellow by inclination, I’d say. He has asked questions on behalf of the panel of only one other witness and had none, it should be noted, for Chapman.

But in his unusually cross cross of King — who, remember, had already been cross-examined by Pratte and by Rocco Galati, Chapman’s lawyer — Macintosh was overtly skeptical of King’s testimony, suggested he and Judge Douglas were into "group sex or threesomes, whatever the number is," openly sneered at King’s claim that though his wife knew he was taking pictures, she neither looked at them nor knew he was posting them.

"You’re sitting there, or standing there, she’s there, the camera’s there," Macintosh asked several times, to titters from the gallery, where Chapman sits with supporters. "You’ll accept that most people, when they get their picture taken, know there would be a picture?"

It was a remarkable day, at a proceeding like this. The panel decided to hear the so-called "Chapman complaint" over an earlier recommendation from another CJC committee that it not, and against Pratte’s own recommendation.

Clearly, the panel members have determined that Pratte and Crain, both very able lawyers, are going to be fair-minded in their approach to the case and to witnesses, and have enlisted Macintosh to do the dirty work, as it were.

How ironic that this very panel, which was so determined to go ahead with the Chapman complaint on the grounds that even weak cases against judges should receive a full airing in the name of transparency, should have abandoned any notion of procedural fairness.

Christie Blatchford is a Postmedia News columnist.