The three little magical questions: "What did you know? When did you know it? What did you do about it?"

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Clare L. Pieuk
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Anonymous has left a new comment on your post, "Time to get out your inner hockey stick to cross-check the Canadian Judicial Council into the Boards?"

In general I've completely disagreed with your approach on the King/Douglas/Chapman situation. That's fair enough.

Yes and no. Oh for sure it's your right to disagree but in fairness the onus remains on you to explain why. Otherwise, how can we defend ourselves not that we feel an urgent need to rush do so you understand.

However, this post is where you are absolutely opening some very interesting and problematic doors.

Simply means we're doing what we should.

Let's assume, for a moment, that the judicial selection committee knew, like the entire legal community apparently did, all about the pictures. And let's assume that Douglas did not know about the King/Chapman solicitation. The former would be easily determined by the CJC, and the latter is a credibility issue that Chapman's lawyer knew he'd lose if he pursued the lawsuit against Douglas (recall he dropped it for insufficient evidence, as his counsel stated to the press).

Lots of "assumes." Like Watergate and Senator Sam Ervin who chaired the senate judicial committee looking into the matter was given to asking witnesses, " What did you know and when did you know it?" To the Manitoba judicial selection committee we'd add a third dimension, "And what if anything did you do at the time?"

As we recall, Mr. Chapmen self-represented when he prepared and registered his three Statements of Claim with Queen's Bench - one against Lori Douglas, a second versus Jack King and the third directed at Thompson Dorfman Sweatman the Biglaw firm both worked for at the time.

However, there were a couple more pressing issues than a lack of evidence. The suits should have been filed separately rather than as one individual action. More importantly, the statute of limitations had expired on these types of lawsuits. This allowed them to be summarily dismissed in quick order.

King and Chapman have already carved each other up. Neither are angels, by any stretch. But what if Douglas simply allowed her husband to take pictures of her for their own pleasure? Shouldn't that be private?

Yes, yes and yes again. Problem is they're not. Being an Associate Chief Justice (Family Division) at the time, do you not think it reasonable she have taken steps to ensure the photographs never saw the light of day? It also begs the question, "What on earth were you thinking recording your bedroom exploits knowing the possibility always existed they could be revealed publicly?

By putting this to a public inquiry, the CJC is basically flinging to the public the question, "Can a judge be a judge if his/her privacy has been breached?"

We'd choose to state the question a tad differently. "Should a judge be allowed to remain on the Bench who was so stupid as to allow these pictures to become public and go viral on the internet?" BTW, that's a view expressed earlier by another reader on another Canadian website. We think it sums up the situation quite well.

This is a brutal question.Have no judges themselves ever been in nasty divorces where awful things were accused? At the end of a divorce, you sign a confidentiality/settlement agreement to put that awfulness behind you. What if it's breached - like Chapman did with the settlement agreement?

As we recall, Mr. Chapmen subsequently offered to return the $25,000 after he went public but was refused. In what some have described as "hush mony," he and his then lawyer Ian Histed negotiated the deal with Mr. Bill Gange at the time acting for Mr. King. It is our understanding Anthony King still has a live lawsuit pending against Alex Chapman for breach of confidentality under the province's Privacy Act.

What if a press photographer catches a gay judge kissing his partner?

Given society's current mores, we'd submit the judge exhibited a significant, profound lack of discretion and judgment by doing so in such a way a press photographer was able to "catch" it on film.

You can imagine many "what if" privacy breaches.

Here's another "what if" privacy breach for you to ponder. What if Lori Douglas, as her husband Jack King claims, did not know the pictures had been posted on a website. Is that not an invasion of her privacy? Is it also a violation of the criminal code?

Let's look at Dark Cavern for a moment the website promoting interracial sex where the pictures were first posted. What is it's purpose? Does the person(s) operating the site do it simply to satisfy some perverted self-gratification or is it set up to generate cashflow? If the latter, does this constitute solicitation under Canadian law?

So do you want a public inquiry to be the place where the morality of consenting adults can be flung to the whims of the populace, where that morality was only revealed by an invasion of privacy? The law protects you and I from that in the courts. Why not judges? A higher standard for them is one thing, but this is so high it's off the charts.

Are you perhaps off the charts? Yes, after all we do it in jury trials don't we? The only way justice will be seen to have been done is if a public inquiry is held. If the Canadian Judicial Council wishes to be perceived as a credible instrument for reprimanding judges it has no choice. But will there be an inquiry or will Lori Douglas choose to step down as it's about to convene? Remember, she continues to draw her $254,600 annual salary plus benefits while assigned to "other administrative duties." Doing exactly what? No one seems to know save for Chief Justice Glenn Joyal of the Manitoba Court of Queen's Bench who made the public announcement a few months ago?

But let's not rush to judgment just yet. Assuming a public inquiry is called what will be it's terms or reference, its purview? Could we perhaps have another Oliphant Inquiry which cost taxpayers $8 million but left more questions unanswered than answered in the Mulroney Air Bus scandal? Why? Because some key areas of questioning had been ruled our of bounds by inquiry chairman Jeffrey Oliphant. We'll have to wait to see.

As a society we draw the line at obvious things: situations where people do NOT consent, situations where children are involved, etc. That's reasonable: those situations are illegal and criminal. But if the CJC has its robes in a knot simply because some "dirty" pictures exist between consenting adults, they're not protecting Douglas from the invasion of privacy. In fact, they're making it far, far worse - and the CJC itself may indeed be perpetrating an invasion of privacy.

Your argument here constitutes a real stretch. When you say, "..... simply because some dirty pictures exist between consenting adults ....." you seem to be glossing over the seriousness of what has happened as though this is somehow a common every day occurence. But is it? Besides, is it the responsibility of the CJC to protect a judge from an invasion of privacy? If the facts are as have so far been publicly stated, it appears to us Ms Douglas needed protection from an invasion of privacy by her husband.

Would you feel the same had this happened to the Chief of Police of the town or city where you live? Should the mayor and municipal council take any action or turn a blind eye?

Ask yourself this: Would this go to a public inquiry if Douglas was just in lingerie? How about just topless? How about in silk bondage gear? How about leather bondage gear? If these were private pictures of consenting adults, should it matter? Is this something where we should be drawing a line?

We did and we will. Indeed, if the public inquiry is held in Winnipeg and if we can attend we'll be there as a media citizen journalist. Trust us it will not be for the titillation, we've already seen the 30-uncensored pictures supposedly covered by a publication ban and they're nothing to write home about! Rather, to satisfy ourself the hearing was fair, impartial and complete.

As an aside, several months ago a fellow blogger sent us an anonymous Shaw based e-mail they'd received. It contained instructions (3-4 steps) for accessing the 30 Lori Douglas pornographic photographs. We opened them to satisfy ourself this wasn't a hoax. It wasn't. As already noted, the images are beyond pathetic not titillating as you somehow seem to be suggesting.

While we're drawing moral lines, how about judges who have cheated on their spouses? Isn't cheating fundamentally worse than engaging in sex games with your consenting spouse?

Comparing apples to oranges are we?

It seems to me that, if everybody on the selection committee knew about the Douglas/King situation and if Douglas didn't actually solicit Chapman (both of which points should have been determined pretty easily by the CJC panel), then the CJC has completely dropped the ball.

But is the CJC the only one to have completely dropped the ball? One of the key questions to which a prospective judge must respond before a selection committee at time of application to paraphrase is, "Have you done or are you involved in any activity/ies which if publicly disclosed could bring disrepute to the judiciary?" or words to that effect. And Ms Douglas' answer was .....?

Another question for you. If, as has been suggested, half of Winnipeg's legal community seemed to know about the Douglas-King-Chapman sexcapade, wouldn't it stand to reason surely someone on the selection committee made up of lawyers/judges should have also known? Doesn't it always comes back to, "What did you know? When did you know it? What did you do about it?" Hopefully, members of the selection committee will be asked this at a public inquiry?
Here's where it could get really interesting. For example, will the terms of inquiry include subpoenaing the original members of the selection committee who recommended Lori Douglas be given a judgeship? And what about the then Manitoba Minister of Justice and his federal counterpart? What did they know? As already noted, it always seems to reduce to those three little magical questions.

Do you want a society where individuals (judges or otherwise) must be held up to the scrutiny of the morality police? Is that right?

That depends. To quote the late Pierre Trudeau, "There's no place for the state in the bedrooms of the nation." However, think about that for a moment. Should it apply equally, for example, to important members of society such as the police, judges and those with access to highly sensitive national security information? In such cases the potential for blackmail as a means of perverting/distorting the system always exists.

Food for thought.

For whom?

True confession time. Speaking hypothetically, of course, supposing, heaven forbid, you'd been charged with some pornography-related offence(s) and were represented by an attorney. Further, you'd become aware Lori Douglas would be presiding over your case. Would you ask your lawyer to request that she recuse herself? Be honest!

Another question. When the Law Society of Manitoba was involved with the Douglas-King-Chapman fiasco a few years ago, do you think it acted appropriatly? What about the Manitoba Court of Appeal which heard Alex Chapman's lawyer's (Ian Histed) appeal of the LSM ruling? Was its decision to order sealed all e-mail, documents and photographs relating to the case the correct one? Protecting their own?