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The Globe and Mail

Council probing complaint against Justice Lori Douglas draws criticism

The council probing a complaint against a senior Manitoba judge photographed in the nude has drawn scathing criticism, particularly in light of its recently failed attempt to place itself beyond judicial scrutiny.

The glaring spotlight now focused on the Canadian Judicial Council is one result of the tortuous hearing into Justice Lori Douglas, which collapsed in acrimony amid accusations of bias.

The complaint against Justice Douglas arose after pictures her husband took of her posing provocatively were posted on the Internet without her permission.

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The salaciousness of the case has partially overshadowed Judge Douglas's assertion that the CJC's inquiry committee, which could recommend to the council that she be fired, has it in for her.

When she took her complaint to Federal Court, the judicial council — essentially comprising the country's chief and associate chief Superior Court justices — argued the courts had no jurisdiction to hear the case.

Federal Court Judge Richard Mosley, however, slapped down that notion. Parliament, he said, could not possibly have intended to bar the "person most directly affected" by the process from accessing the courts.

"What occurred on this judicial review has shown that the system is highly flawed and needs to be seriously reviewed," said veteran lawyer Earl Cherniak, who has previously acted as independent counsel for a CJC inquiry panel.

"The way this inquiry was conducted certainly put a stain on the whole system."

Judge Mosley also shot down the CJC's view that the independent counsel retained to assist the inquiry panel is subject to solicitor-client privilege.

The role of such a lawyer is to help ensure relevant evidence is presented and tested fairly – not to be a committee advocate, the judge said.

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As a result, Judge Mosley ordered correspondence around the resignation of Guy Pratte as independent counsel in August 2012, which could shed light on the committee's inner workings, be made public.

"I was very surprised to see the CJC took the position that it did have a solicitor-client relationship," Mr. Cherniak said. "Such a position is completely at odds with the concept of independent counsel."

Judge Mosley did reject Juustice Douglas's argument that the council's failed assertion of solicitor-client privilege showed inherent bias against her.

Both sides are keeping their powder dry as to whether they will appeal the ruling, a decision they must make by the end of April.

Norman Sabourin, the judicial council's executive director, admitted the ruling has focused attention on the CJC, which recently began asking for feedback on how it does its job.

"For the public, it raises a number of important questions," Mr. Sabourin said. "Our process could no doubt be improved."

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Mr. Sabourin did express satisfaction in Judge Mosley's finding of no CJC bias against the judge.

Justice Douglas and her lawyers have refused to comment publicly.

However, her supporters believe the process has further victimized a woman already victimized by the non-consensual distribution of the intimate photographs – an act the federal government is seeking to criminalize.

"If this is the level of fairness that members of the CJC and judiciary can expect, what can the lay person expect when they're up on a traffic ticket?" said one person, who asked not to be named given the sensitivity of the issues.

Retired Ontario chief justice Patrick LeSage called it "odd" the judicial council would essentially try to place itself above the law.

"It's a committee. It's not a court," said Justice LeSage, who spent about 15 years as a council member.

"It's an administrative tribunal is what it is. Tribunals are subject to judicial review."

Mr. Cherniak goes further, arguing the way the committee has prosecuted its inquiry and the CJC position before Federal Court was "demonstrably unfair."

The judicial council has now appointed two judges and a lawyer to replace the five-judge committee that resigned en masse in November amid the controversy.

It has also appointed a new independent counsel, who has already said she believes she is in a solicitor-client relationship with the inquiry committee — a notion that now seems markedly at odds with the Federal Court ruling.

In the interim, Justice Douglas, who is adamant she has done nothing wrong, remains off the job as the 3 1/2-year case grinds on.

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