Time to go!

Anonymous has left a new comment on your post, "The three little magical questions: What did you know? When did you know it? What did you do about it?"

Good Day Mr. Pieuk,

It would seem that Madam Justice has a defender or, and I think this is more likely, a sympathizer who seems to be defending the conduct more so than the individual. This person seems to be more interested in defending the rights of a person to engage in kink than the impact that the behaviour has on integrity and reputation. A reminder for anonymous: “A judge’s conduct, both in and out of court, is bound to be the subject of public scrutiny and comment. Judges must therefore accept some restrictions on their activities — even activities that would not elicit adverse notice if carried out by other members of the community. Judges need to strike a delicate balance between the requirements of judicial office and the legitimate demands of the judge’s personal life, development and family.”

Ethical Principals for Judges, 1998, Canadian Judicial Council, Ottawa, Ontario,

http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct
_Principles_1998_en.pdf.

In reply to the comments, I submit the following:

In general I've completely disagreed with your approach on the King/Douglas/Chapman situation. That's fair enough. However, this post is where you are absolutely opening some very interesting and problematic doors.

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).

These assumptions are most certainly possibilities; however, they do not put Douglas in a favourable position. Consider: You are saying the selection committee endorsed a candidate who has compromising photos that could lead to extortion. You are then saying “Douglas did not know,” which, I’m sorry, implies that she is a complete moron. She was the wife and a partner in the lawfirm. As wife, she attended several lunches – why would she meet with her husband’s client? Is this not a breach of confidentiality? She was a lawyer at the time, and this is highly unusual and irregular conduct. As partner, she knew about the complaint against the firm and as wife, she was complacent in the payment of marital assets to Chapman. So, either the selection committee is corrupt, or Douglas is truly a moron. Neither is a choice that instills faith in the judiciary.

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? Had the photos remained private, sure. King put them into the public domain. If she is truly claiming ignorance and invasion of privacy – she needs to file suit against her husband. He is the one who violated her privacy.

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?"

I don’t believe this is the question being asked. I believe the question being asked is, “Can a judge be taken seriously when the country has seen him/her naked?” This is about whether or not the public has faith in her integrity, or has she blemished the reputation of the judiciary. It is the “reasonable man” test. Personally, I would walk into her court and demand a new judge. Stating that I have no respect for her because I’ve seen her naked.

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?

What does this have to do with divorce? Further, divorce files are in the public domain, unless sealed due to child abuse or other restrictions. A private settlement – whether family or civil – can contain a confidentiality clause that when breached can be litigated – which is what King is doing. However, it is much like closing the barn door after the horse is out.

What if a press photographer catches a gay judge kissing his partner? You can imagine many "what if" privacy breaches.

Playing the “what if” game is useless and immature. If there is a privacy breach, and the material is inflammatory – the judge is subject to higher standards, end of story. Choices we make often haunt us later in life. Such is the nature of taking a public position. If you have skeletons in your closet, best to keep the closet door closed and stay out of the public eye. With power comes risk, she rolled the dice and lost.

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. 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.

As I stated, the only invasion of her privacy was by her husband. Her only recourse is against King. The CJC is reacting to material in the public domain which has damaged her reputation and that of the judiciary. She agreed to personal scrutiny when she became a judge. The conduct has been public since 2002 – the CJC is not invading anything.

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?

I would expect that compromising photos, that change her from a respected Judge to a sex object and were used to procure sexual favours, would indeed result in an inquiry. The question is not the content, but the existence of the photos in the public domain – where they have been since at least 2002. They are not private – let it go.

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?

We have several Judges who have cheated on a spouse, but that is not public information, because adultery is not a common reason cited for divorce anymore. However, before 1985, a judge, lawyer or public official that committed adultery could be subjected to disciplinary action (according to the coffee house). Therefore, using cheating as appropriate and acceptable conduct as a defence, really isn’t helpful. Again, it is not about the content, it is about the public nature of the photos. How many pageant winners have been removed for pornographic photos? How many public officials disgraced? If society will not tolerate a BEAUTY QUEEN tastefully posing naked, because it ruins her reputation, it is IMPOSSIBLE for a judge to survive the same test.

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

We, as a society, hold certain positions to a higher standard. My quote from the Ethical Principals for Judges makes it abundantly clear that Douglas agreed to this standard upon making application. We also hold other positions of trust (doctors, teachers, LAWYERS) to this higher standard, because we allow them to judge our health, intelligence and competency. They ABSOLUTELY need to be above reproach in order to perform their duties. If a doctor cannot be respected and trusted – you get a second opinion and sue for malpractice. If a teacher cannot be respected and trusted – they get removed! If a lawyer cannot be respected and trusted – apparently they hide behind the almighty Law Society and continue to offend the public.

Food for thought.

It certainly is, but, I think you’re position is clearly flawed. You sympathize with her, but your points only dig her a deeper hole, and you yourself do not understand, nor do you respect, the standards of “the reasonable man.” The MOMENT, someone loses respect for a judge the entire process is put into question.

She consented to the photos.

She participated in paying “hush money” and a cover-up.

She may or may not have mislead the Selection Committee.

There are claims of privacy invasion – but she is not prosecuting this.

There are claims of lack of knowledge – which makes her look stupid.

Personally, I will never have respect for any Judge I’ve seen naked, nor one that is considered stupid.

The situation is very simple, and has nothing to do with her privacy. It has everything to do with the faith of the public. How or why the photos were disseminated matters not. They are out there and will never go away. All it takes is a single person in her courtroom to make a comment such as, “If I tie you up, will you rule in my favour?” and the integrity of the court is, pardon the pun, blown.

I apologize for the length of this commentary. I do wish to point out, that I completely agree with Mr. Pieuk's comments and would also like answers to his questions from the poster.

As always, I continue to seek ...VJH
-------------------------------------------------------------------------------------------
Dear VJH:

Thank you very much for your detailed response (bold) to a previous reader's comments. A couple quick points:

(1) your intention to ask Justice Douglas to recuse herself should, heaven forbid, you find yourself appearing before her, assuming she's allowed to remain on the Bench, is indeed well taken. How many others would do likewise? We certainly would

(2) she could easily become the brunt of jokes for those appearing before her about which the court could do nothing. Everything from, "Your Ladyship I'm ready to proceed with an oral presentation ....." to, as you've suggested, "Not wishing to tie up the courts ....." to, "The naked truth of this matter is ....." to God only knows what else

(3) Judges at time of sentencing are often given to talking about how important it is to make an example of the guilty before society to uphold, as well as, protect the integrity and respect for he courts. We submit (1) and (2) do the exact opposite

Lori Douglas must be removed from the Bench before she becomes an expensive lame duck Justice.

Sincerely,
Clare L. Pieuk

P. S. Another sidebar benefit of an inquiry will be to provide the public with insight into the actions, or lack thereof, of The Law Society of Manitoba and the Manitoba Court of Appeal when they first became involved a few years ago with the sordid Douglas-King-Chapman debacle.

Having followed firsthand the case of Blackie currently before the LSM, we have developed some very serious reservations about the business model it employs. The Society too should be called upon to answer the three little magical questions: "What did you know? When did you know it? What did you do about it?"