Winnipeg Free Press - PRINT EDITION

Clarify role of inquiry counsel

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The sudden and unexplained resignation of independent legal counsel to the Canadian Judicial Council inquiry to determine whether Justice Lori Douglas can remain on the bench has put the hearing in temporary limbo. Until new legal counsel is appointed to replace Guy Pratte, and is able to be fully briefed as to the issues and status of the proceedings, the inquiry can't resume.

When that might be is anyone's guess. But resume it should -- but with a clearer understanding from the get-go as to the roles of independent counsel and counsel for the inquiry committee.

Although Mr. Pratte did not provide reasons for his resignation, his voluntary ouster was not unforeseeable. Mr. Pratte and the inquiry committee had a history of differences of opinion about his authority and how the hearings should be conducted.

In May, as the inquiry was gearing up for hearings, Mr. Pratte and the inquiry committee engaged in a preliminary power struggle over his role. The committee publicly accused Mr. Pratte of withholding details of evidence against Justice Douglas from it, and warned him against "taking over" its role of weighing the evidence. "The suggestion that counsel could withhold relevant information from the committee is inconsistent with the underlying premises of a search for the truth," it said in a 41-page ruling issued May 15. Mr. Pratte dismissed the decision, calling it merely "a clarification as to independent counsel's role."

In July, in hearings in Winnipeg, after the inquiry committee's own lawyer, George Macintosh, vigorously cross-examined Justice Douglas's husband, Winnipeg lawyer Jack King, as to what his wife knew about King's plan to have a client, Alex Chapman, have sex with her, Mr. Pratte threatened to resign if the committee allowed its lawyer to continue aggressive questioning of witnesses. Mr. Pratte suggested if Mr. Macintosh was permitted to continue, it indicated the committee didn't have faith in his ability to question witnesses. But the committee, in another ruling that went against Mr. Pratte, found it was acceptable to direct its lawyer to ask questions on its behalf, and that the "firm and persistent" questions of its lawyer were appropriate.

Finally, just last week, Mr. Pratte filed a motion in Federal Court, which is still pending (and which new independent counsel to the inquiry, once appointed, may or may not decide to pursue), to prevent Mr. Macintosh from asking any more questions of witnesses and striking his previous questions from the record of the hearing. Counsel for Justice Douglas filed a separate motion to quash the inquiry entirely, alleging what's known as "reasonable apprehension of bias" on the part of the inquiry committee, also based on Mr. Macintosh's line of questioning.

The inquiry has been plagued from the start by a lack of clarity as to the proper roles of major players. The Canadian Judicial Council's own bylaws governing judicial inquiries and investigations are partly to blame. They're thin on stipulating the role or duties of either independent counsel or the inquiry committee's own legal counsel.

The bylaws state the independent counsel "shall present the case to the inquiry committee" and "shall perform their duties impartially and in accordance with the public interest." The role of legal counsel to the committee is even more skeletally stated. The bylaws simply state the committee "may engage legal counsel to provide advice and other assistance to it." Whether "other assistance" includes examining or cross-examining witnesses, calling his own witnesses, filing briefs of law, taking positions on motions or the like isn't stated, and therefore open to argument.

The inquiry must proceed, and the Canadian Judicial Council should make haste to install new independent legal counsel.

But first, the respective roles of independent counsel and legal counsel to the inquiry committee must be clarified, lest new independent counsel find himself handcuffed in the same or similar ways Guy Pratte obviously did.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien and Paul Samyn.

Republished from the Winnipeg Free Press print edition September 1, 2012 A14

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