If the Canadian Judicial Council Inquiry Committee reviewing Madam Justice Lori Douglas’ off-duty behavior is a microcosm of Canada’s justice system, why should anyone be surprised that after years of litigation manoeuvres by Ms. Douglas, the Committee has finally thrown up their hands and walked off the job.
Their frustration with the legal gamesmanship and the resulting delay and expense is a feeling that is shared by millions of Canadians daily, particularly those unfortunate enough to be caught in the morass of family court.
However, when the body that governs superior court judges in Canada cannot move forward and complete their mandate because of the interference of another court, one has well and truly gone down the rabbit hole.
Judge Douglas’ saga began in the Fall of 2010 when her husband, divorce lawyer Jack King’s former client, Alex Chapman, reneged on his 2003 agreement to keep his lips sealed in exchange for a payment of $25,000. His lurid secret was that Mr. King had shared explicit nude photos of his wife, Judge Douglas with him and allegedly attempted to entice him into a sexual relationship with the two of them.
Chapman’s complaint to the Canadian Judicial Council alleging sexual harassment started their investigation which eventually led to a rare public inquiry in May 2012 as to whether she was fit to retain her position as a judge of the superior court in Manitoba.
By the time the hearing got underway, additional allegations tangentially related to the harassment charges came into sharper focus. The investigation revealed that when she applied for her judicial position in 2005 she answered the question “Is there anything in your past that could reflect badly on the office of a judge?” in the negative and “changed” some of her diary entries that related to the Chapman allegations.
Several days into the inquiry, after the evidence of husband Jack King and Mr. Chapman had gone in, it became apparent to Judge Douglas’ lawyer that things were not going well for her and an application to terminate the inquiry based on the legal principle of “a reasonable apprehension of bias” was brought on her behalf. The sole basis for the allegation was that counsel for the Committee aggressively cross-examined two inquiry witnesses.
On July 27, 2012 the Committee rejected her application, whereupon she launched an appeal to the Federal Court and obtained an order from that Court that the Inquiry would be “stayed” or put “on hold” until the Federal Court could rule.
The absurdity of the process in the Federal Court is explained by the Committee in their written REASONS FOR RESIGNATION OF THE INQUIRY COMMITTEE CONCERNING THE HONOURABLE LORI DOUGLAS released on November 20, 2013.
They point out that the orders sought by Judge Douglas in the Federal Court and made by the Court were argued without challenge since the only Respondent in the action is the Attorney-General of Canada who brought their own application to be removed from the Federal Court proceedings. The Court refused to remove them from the proceedings but their lack of enthusiasm was evident when they did not appear in court for the stay hearing, thus turning it into an uncontested application, also known as a “slam-dunk”.
The learned justices of the Committee also lament that crucial issues such as the Federal Court’s jurisdiction to usurp the Inquiry’s authority were never addressed and recognize that it may be several more years before the Federal Court completes its review, including the inevitable appeals that will follow.
Finally, the Committee affirms their belief that the inquiry process under the Judges Act must not be high-jacked by “unlimited steps and interlocutory privileges…at public expense”…with the goal of defeating the “wider public purpose that must be served by the judicial conduct process.”
The Inquiry Committee’s resignation is regrettably a necessary, but embarrassing step in a circus that has played out far too long. When will Lori Douglas follow their lead and tender her resignation?
Lawdiva aka Georgialee Lang
Lawdiva's Blog 
I thought the Canadians were immune from this sort of thing. But igloo land has its mayor of Toronto and now this!
The problem I think, is that quasi-judicial bodies must be under better rules for fairness and timeliness. They are created to be less than a full Court for efficiency and special focus. The Inquiry Committee was breaking the rules, got caught, so it went on strike and quit.
The Canadian Human Rights Tribunals, the decision points within the Immigration System, or the problems with the Competition Bureau etc., are examples of how things can go very wrong. There is always a need for redress to the hierarchy of Courts.
Keeping Judges in line is a difficult one, where Parliament itself sometimes has to act. Fine tuning that one, would be a good long-term project for the Senate to take on, to do the hard work of national consultation and building consensus, filing a report including proposed legislation, which would then be tabled in the Senate.
In the situation you cite, it sounds like though the person of interest appears to be a stinker, somebody broke the known rules in order to get where they wanted to go. And the Court had to drag them back. It reminds of when a well meaning police force goes over the line, and when found out, the case is dismissed.
Successive levels of watching the watchers, is our system, which is quite good in comparison to many countries. Making tribunals work well will take time. How long did it take us to create the Courts we now have, and they are probably still a work in progress.
On receiving the CJC’s broadcast notice of this development (at 11:30 PST on Nov. 20) I expected to see a prompt response from the media. The next day (yesterday) I found short statements in the two Winnipeg newspapers and one Canadian Press item in the Globe and Mail. I found those online. I’ve seen nothing in print. Perhaps most surprisingly I haven’t seen a word from the National Post.
The extent of the coverage of the story by the CBC in the fall of 2010 was overkill (and of course repititious as there wasn’t really all that much substance to it). So, why the silence now? Is it possible the media consider this old news, not worthy of any further comment? I think that is unlikely. I think maybe they don’t know what to say, because they never understood the significance of the story in the first place.
Every once in awhile we Canadians are reminded that with our oft celebrated justice system is only a step away from Third World. I predict that neither Lori Douglas or the system that allows justice to be so simply set aside will not go quietly into that good night.
Why doesn’t she resign? Wow. You haven’t read any of the public filings in the Federal Court, have you? If you had, you would have noticed that the Federal Court already dismissed the arguments of the “learned justices of the Committee”. The Committee could have appealled (in fact, the CJC itself is arguing “jurisdiction” in Federal Court right now). Or it could have resigned when Douglas and Pratte both filed for JR.
But instead it spent 15 months in its own “litigation manoeuvres”, costing the taxpayers money, and then bailed at the final moment (when it was clear that the JR was going ahead) with barely a shoulder-shrug.
So: as an officer of the court you are suggesting that a person (a judge!) has no right to due legal process and ought to resign. And that somehow taking a grievance for adjudication is improper. The aggrieved person simply ought to simply slink into the corner and be quiet.
Great counsel, counsellor!