Judicial independence would be undermined if judges lived under the spectre that every complaint about them regardless of merit would be given a full public airing. So it is in the case of Associate Chief Justice Lori Douglas.
While the Canadian Judicial Council's preliminary review panel did not forward Alex Chapman's sexual harassment complaint against Douglas to the public inquiry, they later decided to hear it anyway. None of the allegations, in our view, ought to be grounds for removal, but this particular decision may itself irretrievably damage her capacity to serve as a judge.
Judges can only be removed if their conduct is "so manifestly and profoundly destructive... that public confidence would be... undermined."
Complaints about judges are first reviewed by a preliminary panel and, only if it is in the public interest, is the complaint subject to a full inquiry.
In 2010-11, the council received 156 complaints, yet in its 40-year existence, only nine complaints have been referred to a full inquiry and only one judge has been removed.
The Douglas inquiry is scheduled to hear witnesses throughout the summer. It will then decide whether the evidence supports any of the allegations and, if so, whether her conduct was "so manifestly and profoundly destructive" as to warrant removal.
This hearing will be deeply humiliating for Douglas, her husband, Jack King, and Chapman. Anyone who cares to can find out details of Douglas's husband's unimaginable act of betrayal, their sexual practices and Chapman's criminal history. Chapman will face gruelling cross-examination about his motives. If the inquiry had not insisted, in effect, that independent counsel include the sexual harassment complaint despite its obvious weaknesses, most of this spectacle could have been avoided.
The facts of this sad tale are well known. In 2003 King and Chapman settled a sexual harassment complaint for $25,000 -- more than usually paid in such cases. Chapman made no complaint about Douglas.
In 2010, Chapman gave sex photos of Douglas, which he had not destroyed, to media, and filed lawsuits totalling $67 million against King, Douglas and their former law firm and complaints with their respective professional bodies. Why did Chapman make allegations seven years after a fair and expeditious settlement of his complaint? Chapman asserts that he wanted to see justice done. But his lawsuits were withdrawn or summarily dismissed in late 2010.
Bill Gange, King's lawyer, says that he received a phone call from Chapman's lawyer at that time, warning him that unless he dropped a motion to be reimbursed for some legal expenses for the dismissed lawsuit, photos of Douglas might re-appear on the Internet. Gange refused. The day the motion was heard, the photos were back on the Internet.
Independent counsel for the inquiry has now completed his investigation and his summary of four allegations was made public. The inquiry directed him to "forcefully" present "the strongest case possible in support of the allegations against the judge." He had no choice in the face of this ruling but to allege that Douglas participated in sexual harassment.
The other three allegations are that publicly available sex photos of a judge compromises judicial integrity; that Douglas improperly answered a question on the judicial application form; and that Douglas failed to fully disclose facts to the independent counsel.
This inquiry is the first where the most serious allegations -- harassment and availability of sex photos -- rest on the wrongdoing of others. Every other case was about either bad behaviour in the court room or misuse of judicial office.
Douglas, who has now publicly responded through her lawyer, says she knew nothing of the activities of her husband in posting the photos or soliciting Chapman until the 2003 settlement.
When she was considered for appointment as a judge, she did not hide the "open secret" of his behaviour and the photos, even though she had answered "no" to the question "is there anything in your past or present which could reflect negatively on yourself or the judiciary?" believing the Chapman matter had been fully settled and the photos destroyed.
Some people record their sexual activity. We now know that senior members of the Manitoba bench and bar did not think that participation in making sex photos is reason enough to preclude a judicial appointment. We are troubled that a judge could be removed because she has been victimized by the egregious acts of others or has participated in a lawful activity even if that activity is disturbing to some.
We fear that the Douglas inquiry have a chilling effect on the willingness of women -- who know that sexual double standards still exist -- to serve as judges.
Lorna A. Turnbull is dean, faculty of law, University of Manitoba.
Karen Busby is a professor of law, faculty of law, University of Manitoba.