Sunday, August 26, 2012

Caught in the tumbrels of the law!

Dear CyberSmokeBlog:

Loved your latest Bitcher & Prickman cartoon. It sums up Lori Douglas' predicament between her appointment and August of 2010 in a very concise way except it's not just one guy who has the pictures everybody potentially has. Paradoxically, she is protected now from blackmail by the humiliation of the exposure. She may be the greatest judge in the world and many who have had their family law cases adjudicated by her believe she is - bright, fair, sympathetic, rational, etc.

However, she is not without her critics. No judge in family court has, in the toughest cases, much more than a 50% approval rating. Unfortunately, some lawyers would use these events to ask for her recusal if they thought there was something to gain even though none were moved to do so from 2005 to 2010.

Divorce/Family Court must be difficult for Judges because:
I agree with your assessment of George Macintosh's (Inquiry Counsel) work. He asked questions that needed to be asked. Why Independent Counsel Guy Pratte didn't press harder on these points is a bit of a surprise/puzzle.

Part of the answer may well lie in the ongoing lack of clarity, responsibility and definition of an Independent Counsel at a Public Inquiry. It was for this very reason while arguing for intervener standing CyberSmokeBlog maintained citizen oversight was essential. It fell on deaf ears so now the Committee is seeing the results. 

But certainly Macintosh asked valid questions and got crucial information on the record. He established that the $25,000 was paid to protect Douglas' reputation. We now know this money came from her. We know she was concerned that this issue would end her prospects of becoming a Queen's Bench Justice in her mind from her diary entries.

Yes indeed, thank you for reminding us. As we recall, when Mr. Macintosh asked Mr. King if he had re-paid his wife the $25,000 loan the answer was "yes." While listening to testimony we were reminded of Richard Nixon and Watergate. It likely wasn't the break-in per se that cost him his presidency, rather, his elaborate attempts at a cover up. Had he come forward from the get go with a "heartfelt, teary-eyed, on bended knee apology" he may have survived in office. But he didn't and it didn't.

We saw no outward appearance of Mr. King being contrite or remorseful, rather, he came across as evasive and at times "chippy."  

And she appears to have been actively involved in the negotiations which led to the pay-off. So she paid hush money to become a Justice? That is what the picture looks like today. It is more than a little astonishing this fact does not form the basis for an additional charge against her. Another Pratte error? Not in his mind I'm sure.

Again, it speaks to the issue of an omnipotent Independent Counsel with no external citizen oversight or taxpayer accountability.

Douglas' lawyer (Sheila Block) is right in arguing that there appears to be some bias against her client in that the case does not appear to be going well for her. But what does the word "bias" mean? Ms Douglas did hold herself forth as being beyond reproach in her application to become a Justice and had support from the judiciary in Manitoba advancing the softened version of the facts that appears to have been taken as gospel in the vetting and selection process.

There's more than enough blame to go around!

But is it truly bias against her when the Committee seeks facts and evidence that is not as benign as her preferred version which she appears to have offered up to every decision maker who mattered?

Like love perhaps bias is in the eye of the beholder.

Her Counsel knows where the case is headed in this venue (Canadian Judicial Council) and does not like it so she's making a long odds move in Federal Court which will eventually kick the can down the road but will not likely do much else.

Yes, the Federal Court of Canada will likely rule the Inquiry is to continue. If Defence Counsel is dissatisfied with the eventual outcome it can appeal the ruling to the FCC again, of course, at taxpayer expense. 

As I watch the coarseness of this entire spectacle, governed as it is by the best rules those in power can think of, I continually wonder whether we can't do better. Today's rules on this issue were made 40 years ago. Very few people versed in modern social science, psychology or law would agree that the approach of the CJC, Independent Counsel and Counsel for Douglas has anything better than an accidental prospect of producing a just outcome for the main participants because of the adversarial nature of the process.

Agree. An Independent Commission with significant taxpayer input is needed to bring the rules up to 2012 standards. 

The Council's entire process in this new internet age case stinks to high heaven and serves no one well. The public, litigants who have appeared before Douglas (or who may in the future), the judiciary on an individual level and as a vital institution, the legal profession and aspirants to judicial office, as well as, most importantly of all, Canada's citizens who rely on our courts to maintain a modicum of civilization have been poorly served by this boondoggle.

The Council is largely handcuffed by a system, some of its own doing, in need of a major overhaul.

And that is unfortunate because the 5 Members of the Inquiry Committee have done an exceptional job in serving the public interest to this point constrained as they are by ancient and poorly developed laws and rules that first took root 3 or 4 hundred years ago for the most part. A fair minded analysis of this entire chain of events reveals many points at which rational and humane intervention could have spared the excruciating painful consequences now being inflicted on some individuals by this process.

Yes, the amount of documentary evidence the CJC has made available on its website is impressive. Regarding excruciating, painful consequences currently being inflicted, Lori Douglas could have chosen to quietly resign with a handsome taxpayer package thus avoiding much of the spectacle the public is now witnessing. 

Think of this. We love the rule of law so much that we forget about the people caught in its tumbrels. But I suppose we will just have to accept that this is the way things are and get used to it.

The real test will come in three years or so after the Inquiry has completed its work. What meaningful changes will have been made to the system? We dare say few if any. 

Anonymous

Dear Anonymous:

Thank you for a very fair, balanced insightful and thought provoking letter raising many interesting points. Liked the last Bitcher & Prickman did we? Well, your reward is another.
To facilitate the process we've added our two cents worth in blue. Readers are encouraged to weigh in with their comments.

Sincerely,
Clare L. Pieuk

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