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Tests put to judge appropriate

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Court of Queen's Bench Justice Lori Douglas has a good explanation for why she said "no" in 2004 on the judge application line where she was asked if there was anything in her past or present that could reflect negatively on her and should be disclosed. Simply, she says, she had done nothing wrong.

But that was not what she was asked, precisely, and the wiser answer would have been "yes, with an explanation." This error now sees Judge Douglas before the Canadian Judicial Council, defending herself against allegations to be heard publicly later this month.

But for the claims of a former client of her lawyer husband, Jack King, it seems next to no one has anything bad to say about Lori Douglas. In fact, there is wide and justified sympathy that she is the victim in all of this. Mr. King in 2003 approached his client Alex Chapman with pornographic photos he took of Ms. Douglas and asked him to have sex with her. He also posted the photos on the Internet. This sordid affair ended with a settlement, after Mr. Chapman alleged sexual harassment against Mr. King, took $25,000 from him and agreed to destroy the photos.

Ms. Douglas, who learned of it at the settlement, had encouragement from legal colleagues, including judges, to apply to be a judge. But in answering "no" on the form that asks for full disclosure of one's past, she drew the attention of some of the local judicial appointments advisory committee who knew of the Chapman incident.

After calling Ms. Douglas to discuss the past, the committee recommended her application, but flagged the Chapman issue for the review of the federal justice minister, who then appointed her to the Queen's Bench in Manitoba in 2005.

Judge Douglas makes the case that what her husband did, and the consequences that flowed from it, are not relevant to her ability to be a judge. But the application process is very careful to canvass all possibilities that the candidate's character and history does not reflect badly on her or the judiciary. Even through no fault of her own, such a past could present a problem to a judge -- something evident to the chief justice of the Queen's Bench in 2003, when he initially opposed her application, fearing the fact photos had been on the Internet made her a potential target of blackmail. He withdrew his objection in 2004.

Although the council has decided to hear the allegation of Mr. Chapman that Ms. Douglas was party to the sexual harassment he alleged Mr. King carried out, it would appear that only bears weight because of Judge Douglas' own actions. In documents before the council, Judge Douglas admits to having changed an adjective scribbled into a diary on the day she met Mr. Chapman, and then, during investigation by the judicial council, she did not respond to questions about it accurately. She corrected the version of events shortly after.

On the face of it, her actions, while wrong, seem unlikely to meet the threshold of the "manifestly and profoundly destructive" conduct required to be ousted from the bench. But the role of the judicial council is to represent the public interest in sustaining confidence in the judiciary. Judge Douglas will have her chance in her own words to put all the questions to rest, to show she can do the job fairly and with impartiality. But the council did the right thing in deciding to put that to this test.

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 16, 2012 A16

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