Winnipeg Free Press - PRINT EDITION

Get Douglas review back on track

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The resignation of the Canadian Judicial Council inquiry committee tasked with advising the council whether Queen's Bench Justice Lori Douglas should be removed from the bench is, at first blush, the worst possible outcome -- for both the judge and the public interest. In the result, neither the judge nor the public gets the airing of the issues each deserves.

Justice Douglas has lost the chance to clear her name and restore her reputation. And the public is left wondering about grave allegations made against someone who seeks to return to the bench and sit in judgment of them.

Those allegations include whether she engaged in sexual harassment of Alex Chapman, whether she failed to disclose facts about her past on her judicial-appointment application, whether she altered a diary entry that's critical evidence and whether she misled the inquiry committee's former independent counsel about the diary changes.

The inquiry committee hasn't sat for hearings since July 2012, following dismissal of the judge's application to terminate the hearing due to alleged apprehended bias of the committee arising from its counsel's cross-examination of witnesses. Since then, it's been tied up in motions and applications in the Federal Court, awaiting full hearing about the judge's bias allegations.

The Canadian Judicial Council has the right to appoint another inquiry committee. But, so far, it's not saying whether it will. It should.

But before it does, it should heed the resigning committee's advice.

The committee didn't simply resign. Accompanying its resignation was a closely reasoned 11-page formal "reasons for resignation." It outlines not only why it resigned but also structural legal issues that impeded it doing its job and might well hamstring any successor inquiry committee.

Douglas had applied to the Federal Court for a judicial review -- essentially an appeal -- of the inquiry committee's refusal to terminate its hearing due to its alleged bias against her. That review, technically, is still pending, but may well be moot in light of the inquiry committee's resignation. However, in the interim, Justice Douglas had applied, successfully, to that court for an order to stay all inquiry committee proceedings until the judicial review is heard.

The inquiry committee was not permitted to oppose Douglas's motion for a stay of its inquiry or to oppose her pending application for judicial review based on the judge's allegation of the panel's bias against her. Legally, as the tribunal appealed from, it had no standing to do so. So Douglas was, and is being, allowed to proceed unchallenged in Federal Court, the inquiry committee underlined in its reasons.

Only the attorney general of Canada could have opposed Justice Douglas and challenged her allegation of bias. But it declined to do so.

The inquiry committee's reasons also include a persuasive argument that the Federal Court has no jurisdiction -- no legally constituted authority -- to even conduct a judicial review of the inquiry panel's decision. However, again due to its lack of standing, it's not allowed to raise this argument in Federal Court.

The bottom line of the committee's reasons is that if its authority can be usurped by a judge hijacking its proceedings to Federal Court, so can its successor inquiry committee, or, indeed, any other future judicial-conduct inquiry.

Before the Canadian Judicial Council rushes to appoint a successor inquiry committee it must take a long, hard look at both the mandate and powers it vests in inquiry committees. It should resolve whether the inquiry committee has the status of a superior court, and therefore whether its decisions can be reviewed by the Federal Court.

The Douglas inquiry panel's resignation was not entirely unforeseeable. Its inquiry had spiralled out of control, with a plethora of motions and applications sidetracking its proceedings to the court.

But any new inquiry committee may well find itself facing the same obstacles, absent substantive changes to how judicial-conduct inquiries are run in Canada.

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

Republished from the Winnipeg Free Press print edition November 22, 2013 A14

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