Sunday, June 17, 2012

Our analysis of The Notice of Allegations and the Response of ACJ Douglas!

Good Day Readers:

When we appear later this month to defend our submission for intervener standing at the upcoming Inquiry Commission before a panel of five judges, here's what we'll be up against:
Independent Inquiry Counsel Guy J. Pratt

In 2007, Mr. Pratte became a Fellow of the American College of Trial Lawyers a status reserved to less than 1% of all practicing lawyers of any state or province

Team Block-Reynolds for ACJ Douglas
According to Torys website Sheila Block is recognized as one of the world's top 10 commercial litigators and one of Canada's 50 most influential women.
A member of Tory's Litigation and Dispute Resolution Practice Ms Reynolds has appeared before the Ontario Superior Court of Justice, Ontario Court of Appeal and the Supreme Court of Canada.

Is CyberSmokeBlog as laypersons intimidated? "No, we're too stupid to feel intimidated. A good argument is a good argument no matter from where it comes!"

The Notice of Allegations

Upon reading the aforesaid document we offer the following:

(1) In our original submission of April 12, 2012 to which Mr. Pratte responded (May 9), he states at page 5 paragraph paragraph 6:

Mr. Pieuk does not allege a substantial and direct interest in this investigation. There is no suggestion that he may be adversely affected by the outcome of the investigation. He does not allege that he brings any "clearly ascertainable interests or perspectives" essential to the Committee's mandate. There is nothing to distinguish his request from similar requests that might be made by any other media organizations. Further, Independent Counsel is mandated to perform his duties inpartially and in accordance with the public interest: There is no need or justification for Mr. Pieuk to play a similar role. (emphasis ours)

With all due respect to Mr. Pratte, CyberSmokeBlog strongly disagreed then and upon reading Independent Counsel's Notice of Allegations even more now. It offers the following reasons:

(i) Without intervener citizen oversight the Inquiry Commission will, in our opinion, face a credibility issue - another example of lawyers debating other lawyers over the fate of a judge who happens to be another lawyer

(ii) If there is no direct public involvement in the questioning phase can the Douglas Inquiry be legitimately termed a "Public Inquiry" or will that be in name only? Is the potential for a whitewash enhanced?

(iii) From The Lawyers Weekly June 8, 2012 Issue by Cristin Schmitz (Counsel rebut CJC criticisms - Disagreement over role of independent counsel in past probes of judges) we have:

"There was a concern that independent counsel may not have fully appreciated that their role was to act as an advocate to present the case against the judge," explained the Douglas Inquiry, chaired by Alberta Chief justice Catherine Fraser.

"As a result," they said "the judges who were the subject of these inquiries has strong representation (from the lawyers retained to defend them) but the case for removal may not have been fully presented. (emphasis ours)

For reasons that will be made clear in CyberSmokeBlog's re-submission for intervener standing, a layperson advocate will be critical to the public's perception of The Douglas "Public" Inquiry and its ultimate success or lack of success thereof. Our submission will be posted on this site after it has been sent to Inquiry Counsel George Macintosh.

(2) It is our position the Notice of Allegations fails to include certain salient allegations

(3) At 3 d):

"Ms. Douglas had two social encounters with Mr. Chapman at one of which Mr. Douglas and Mr. Chapman engaged in touching."

CSB will closely study the witness list once released to ascertain whether there will be any collaborating evidence tendered by Independent Counsel. If so it has the potential to blow the Defence's case out of the water

(4) At page 3 paragraph 9 it's states:

Upon being advised of the Chapman Complaint and the initiation of an investigation by the CCJ, ACJ Douglas modified a personal diary that described an encounter with Mr. Chapman which she knew or ought to have known was relevant to the investigation. ACJ Douglas subsequently intentionally made incorrect representation to Independent Counsel about that modification. (emphasis ours)

If this can be proven it could be explosive. Remember the case of Minister responsible for International Cooperation Bev Oda who altered a document by adding a simple word, "no" that changed everything causing her enormous political grief.

Response of ACJ Douglas

Our overall impression was that of a fairy tale where readers are asked to temporarily suspend reality.

We have seen the unredacted photographs.While Jack King has freely admitted he was responsible for their posting on the internet, has it been established he took them? There is one which raised this issue in our minds.

We have arranged out comments by paragraph:

[5] It should be noted Mr. Jack King pled guilty at his Law Society of Manitoba and, therefore, to the best of our knowledge has not been cross-examined under oath regarding his role in the matter.

[6] Both Lori Douglas and Jack worked for the same law firm (Thomson Dorfman Sweatman) although the exact dates are not clear. Why on June 16, 2003 was Jack King compelled to tell his wife what he had done?

[7] How did the payment of $25,000 make by Mr. King to Alex Chapman and his then lawyer Ian Histed make them "rich?" Notice the possible Freudian Slip - "King Jack"  

[8] Are two 'social encounters' with the same person to be explained by fate or perhaps divine intervention?

[10] Knowing the pictures existed what actions, if any, did Ms Douglas undertake and when to ensure they would never see the light of day?

[11] As part of the confidentiality agreement why didn't Mr. King's lawyer William Gange not insist that the computer be surrendered? However, even at that there are no guarantees copies were not stored elsewhere. Almost two years ago CyberSmokeBlog received by way of another blogger a copy of an e-mail transiting under an anonymous Shaw.ca address. It contained instructions and 4 hyper links which when followed and opened contained 30 completely unredacted photographs

[14] Then the application forms used to vet judges nee to be upgraded. Further, there is no Statute of Limitations on blackmail. Has Lori Douglas sued her husband for invasion of privacy and defamation?

[15] Did the Judicial Appointments Committee and the then Federal Minister of Justice exercise due diligence?

[16] How can that be guaranteed given the website that initially posted the pictures, Dark Cavern, appears to located outside Canada and, therefore, is immune from Canadian jurisprudence such as publication bans and court orders?

[17] Why did the Manitoba Chief Justice change his mind in late fall of 2004?

[18] Murphy's Internet Law: Pictures are online forever ready to jump up to bite you in the worst possible place at the worst possible time. Everyone knows that!

[19] Did the Chair of the Judicial Appoints Committee and Members exercise due diligence? Had they would we be here today?

[20] Did the then Federal Minister of Justice fail to exercise due diligence?

[21] The application form used to vet Manitoba Queen's Bench Justices appointments needs to be upgraded to include family members especially for those in the Family Division who are sitting in judgment on matters such as child custody

[22] Were there no other suitable candidates without this kind of baggage? Sealing the documents was akin to locking the internet barn door after the horses had escaped

[23] "..... to the extent photos have ever appeared on the internet ....." They have been all over the internet. "..... this has not been caused by any conduct of the judge." Perhaps so, but the issue of recusal could result in her becoming a lame duck if she is allowed to remain on the Bench. Can taxpayers afford that?

[24] Regardless of whose fault it was the fact remains she has been placed in a position of vulnerability

[25] Lori Douglas and The Selection Committee should have had the presence of mind to realize that was always a possibility

[26] Problem is, wrong thinking people can send the photographs to right thinking people

[27] It matters not. Heads of organizations are and have been terminated because a situation happened on their watch even though they were completely unaware. The coach in professional sports who was hard working and fundamentally sound but is fired because their players failed to execute and, as a result, lost too many games. All the players cannot be released so someone has to be the sacrificial lamb

[28] Tenure encourages poor performance. One need look no further than the Sleepy Hollows of academia. Did Ms Douglas violate her oath of office?

[29] No tenure should be constitutionally secure

[30] We have the practical example of the Minister of International Cooperation where the insertion of one work, "no" after the fact made a world of difference in a document

[31] Ms Douglas had an option. She could have referred Independent Counsel to here taxpayer financed legal team

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