Winnipeg Free Press - PRINT EDITION

Douglas rewind abusive

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The protracted and expensive Canadian Judicial Council inquiry to determine whether Justice Lori Douglas remains on the bench is about to get more protracted and expensive, if its new independent legal counsel gets her way. Suzanne Cote, the Montreal lawyer hired by the council last September after its former independent counsel suddenly resigned, proposes to recall witnesses who have already testified before the inquiry so she can question them herself.

Cote's proposal is a colossal mistake. It would entail the inquiry panel rehearing the same witnesses and same or similar testimony already in evidence at the inquiry. It would jack up the costs of an inquiry that has already cost several million dollars without getting anywhere near a decision.

Cote did not name the witnesses she wishes to re-examine. However, those who've already testified include Winnipeg lawyer Jack King, who posted sexually explicit photos of his wife, Justice Douglas, on Internet websites and Alex Chapman, who accused the judge of participating in her husband's sexual harassment of him. Another possible witness who might have to re-testify is former Manitoba Court of Appeal judge Martin Freedman, who chaired the judicial appointments advisory committee that recommended Douglas's appointment.

It's legally unclear whether Cote has the authority to do this without the backing of the inquiry panel. Nor is it clear whether she will make a formal motion to recall witnesses who've already testified under oath. But, she has said she wants to recall witnesses "since I want to question them myself."

Nothing could be more counterproductive to the inquiry getting on with its job than a proposal to re-hear the evidence.

Not only is it duplicative of testimony already heard, but it would likely spawn more procedural wrangling that diverts the inquiry panel from its role determining -- or more precisely advising the Canadian Judicial Council -- whether Justice Douglas should be removed from the bench. Almost certainly it would trigger a host of legal objections from the principal parties -- King, Chapman and Justice Douglas -- and perhaps other witnesses who've already testified.

The Douglas inquiry has been plagued by multiple delays. It's also been in limbo nearly a year, pending various court applications.

Justice Douglas has a current application before the Federal Court to shut down the inquiry based on a "reasonable apprehension of bias" due to the inquiry panel's own lawyer's aggressive questioning of witnesses supportive of the judge. She has also filed a motion to stay the inquiry panel's proceedings until that application is heard.

The inquiry was to resume hearings in Winnipeg in late July. However, it's now unclear whether it will proceed in light of the judge's latest motion to suspend its activities.

But a demand to recall witnesses who've already testified amounts to starting the inquiry from scratch. An astonishingly benighted plan, that can only generate more delay, and greater cost to the taxpayer.

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

Republished from the Winnipeg Free Press print edition June 22, 2013 A16


Updated on Monday, June 24, 2013 at 11:37 AM CDT: Corrects spelling of Suzanne Cote

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