Kyle Kirkup is a 2013 Trudeau Scholar at the University of Toronto Faculty of Law. He writes about criminal law, sentencing, sexuality, and gender identity. Follow him on Twitter @kylekirkup.
Associate Chief Justice Lori Douglas – a judge from Manitoba whose former husband allegedly posted private, sexually explicit photos of her on the Internet without her consent – appears to have been the victim of revenge porn.
The Canadian Judicial Council (CJC), a federal body tasked with reviewing complaints against superior court justices, seems to understand the case in vastly different terms. For them, the mere presence of these intimate photos online threatens to undermine the integrity of the judiciary, along with the confidence of individuals appearing before Justice Douglas in the future. As a result, the CJC is continuing to pursue a 2010 complaint made against Justice Douglas.
It is time for the CJC to stop the re-victimization of Justice Douglas and end the inquiry altogether.
Over the past four years, Justice Douglas has been the subject of unnecessary, puritanical scrutiny. In July 2010, Alex Chapman, a former client of Justice Douglas' then-husband Jack King, filed a sexual harassment complaint with the CJC for conduct that allegedly occurred two years before Justice Douglas' appointment to the bench.
In his complaint, Mr. Chapman suggested that Justice Douglas and her husband Jack King sexually harassed him. At the time, Mr. King had been handling Mr. Chapman's divorce. Mr. King allegedly posted private, sexually explicit photos of Justice Douglas online and invited Mr. Chapman to have a threesome with the couple.
In January, 2011, the CJC referred the complaint to a five-person review panel, finding that the matter merited further investigation.
In 2012, the first review panel fell apart after well-respected Quebec lawyer Guy Pratte resigned as independent counsel over allegations of bias. Based on legal advice, reportedly from new independent counsel Suzanne Cote, the CJC's second panel recently decided to drop its investigation of the sexual harassment complaint altogether.
In essence, what remains are the sexually explicit photos.
The CJC complaint notice against Justice Douglas states: "The photos could be seen as inherently contrary to the image and concept of integrity of the judiciary…The confidence of individuals appearing before the judge, or of the public in its justice system, could be undermined." Hearings are scheduled to continue in November. If the complaint is successful, Justice Douglas could be removed from the bench altogether.
This case sends a troubling message to all current and prospective judges – if you have sex, make sure no one ever takes photos. If you want to be entirely safe from a CJC complaint, disclose all sexual activities before your appointment as a judge. Even better, don't have sex at all.
As cases ranging from Amanda Todd to Jennifer Lawrence demonstrate, the contemporary world of communication has facilitated the exponential growth of revenge porn. In response, the Canadian government introduced the Protecting Canadians from Online Crime Act in 2013. If passed, the new legislation would make it a crime to distribute sexually explicit images without the other person's consent.
In light of this legislation's recognition of the considerable harms flowing from the practice of revenge porn, it is troubling that the CJC is continuing to proceed with the complaint against Justice Douglas. As her counsel notes in their submissions to the CJC, "Public opinion has developed to recognize that victims of the non-consensual distribution of intimate images should not be punished or blamed, and that the perpetrators have committed morally reprehensible invasions of privacy that ought to be punished."
History will not be kind to the CJC for its handling of this complaint. Justice Douglas should not be forced to continue to unwittingly star in a remake of The Scarlet Letter, cast as a modern-day Hester Prynne and punished because she dared to allow her former husband to take private, sexually explicit photos of her.
Once and for all, it is time to end the inquiry and allow Justice Douglas to return to the bench.