Time to press Suzanne Cote's "re-set" button?

Suzanne Cote Montreal BigLaw Osler

Good Day Readers:

A special thank you to Kari Simpson founder of the video website Drive For Justice and RoadKill Radio News for sending along the link to the Winnipeg Free Press editorial which appears below.

Like CyberSmokeBlog she too has been highly critical of the way the Canadian Judicial Council does business and with very good reason.

CSB believes the CJC operates as a kingdom unto itself spending taxpayer dollars like an army of drunken sailors while "purporting" to always operate in the public interest. But does it? Take, for example, "Re-Set Button" Cote. Presumably, she has complete transcrips of all witness testimony to date. Will the Inquiry Committee have the presence of mind to request "Re-Set Button" submit in advance a written list of all questions she believes were either not asked, asked improperly and/or answered inadequately before rendering its decision? Don't count on it!

Then there's Guy "The Cat" Pratte who along with helper Kirsten "The Pain" Crain ("If he goes I go .....") suddenly resigned probably because the former's nose was significantly out of joint when the Committee asked Inquiry Counsel "Gentleman" George Macintosh to re-examine a couple key witnesses. However, we may never know because "The Cat" refused to release a copy of his resignation letter to the media and The Council won't post it on its website which prompted Complainant Alex Chapman's Toronto lawyer Rocco ("Mr. Good Guy") Galati to file an application before the Federal Court of Canada for its release.

"The Cat" must be doing a slow burn over at Borden Ladner Gervais because what "Re-Set Button" is attempting to do suggests for whatever reason(s) she may not be satisfied with the original Independent Counsel's handy work.

"Mr. Good Guy"

If you read The Lawyers Weekly article referenced below "Mr. Good Guy" makes the most sense.

So as the Inquiry grinds on the Canadian Judicial Council remains oblivious to taxpayer cost. If nothing else it's providing good theatre albeit expensive theatre for the great unwashed masses.

Sincerely,
Clare L. Pieuk

Douglas rewind abusive
Editorial
Saturday, June 22, 2013

The protracted and expensive Canadian Judicial Council inquiry to determine whether Justice Lori Douglas remains on the bench is about to get more protracted and expensive, if its new independent legal counsel gets her way. Suzanne Cote, the Montreal lawyer hired by the council last September after its former independent counsel suddenly resigned, proposes to recall witnesses who have already testified before the inquiry so she can question them herself.

Cote's proposal is a colossal mistake. It would entail the inquiry panel rehearing the same witnesses and same or similar testimony already in evidence at the inquiry. It would jack up the costs of an inquiry that has already cost several million dollars without getting anywhere near a decision.

Cote did not name the witnesses she wishes to re-examine. However, those who've already testified include Winnipeg lawyer Jack King, who posted sexually explicit photos of his wife, Justice Douglas, on Internet websites and Alex Chapman, who accused the judge of participating in her husband's sexual harassment of him. Another possible witness who might have to re-testify is former Manitoba Court of Appeal judge Martin Freedman, who chaired the judicial appointments advisory committee that recommended Douglas's appointment.

It's legally unclear whether Cote has the authority to do this without the backing of the inquiry panel. Nor is it clear whether she will make a formal motion to recall witnesses who've already testified under oath. But, she has said she wants to recall witnesses "since I want to question them myself."

Nothing could be more counterproductive to the inquiry getting on with its job than a proposal to re-hear the evidence.

Not only is it duplicative of testimony already heard, but it would likely spawn more procedural wrangling that diverts the inquiry panel from its role determining -- or more precisely advising the Canadian Judicial Council -- whether Justice Douglas should be removed from the bench. Almost certainly it would trigger a host of legal objections from the principal parties -- King, Chapman and Justice Douglas -- and perhaps other witnesses who've already testified.

The Douglas inquiry has been plagued by multiple delays. It's also been in limbo nearly a year, pending various court applications.

Justice Douglas has a current application before the Federal Court to shut down the inquiry based on a "reasonable apprehension of bias" due to the inquiry panel's own lawyer's aggressive questioning of witnesses supportive of the judge. She has also filed a motion to stay the inquiry panel's proceedings until that application is heard.

The inquiry was to resume hearings in Winnipeg in late July. However, it's now unclear whether it will proceed in light of the judge's latest motion to suspend its activities.

But a demand to recall witnesses who've already testified amounts to starting the inquiry from scratch. An astonishingly benighted plan, that can only generate more delay, and greater cost to the taxpayer.

Republished from the Winnipeg Free Press print edition June 22, 2013 A16

Douglas Inquiry's new counsel wants do-over
By Cristin Schmitz
June 7, 2013 Issue

The beleaguered inquiry into a judicial sex scandal has taken an unusual new turn in what is shaping up to be a very long and expensive road.

Suzanne Côté, the replacement independent counsel hired by the Canadian Judicial Council last September to present the alleged misconduct case against Manitoba Judge Lori Douglas, says she wants to press the “re-set” button on the CJC’s stalled multimillion-dollar inquiry.

The inquiry committee chaired by Alberta Chief Justice Catherine Fraser adjourned last July when Justice Douglas’s counsel asked its members to recuse themselves for reasonable apprehension of bias.

“I have indicated that when the inquiry resumes, I will ask the witnesses who already testified to come back since I want to question them myself,” Côté told The Lawyers Weekly.

Côté, of Osler LLP in Montreal, declined to comment on whether she can effectively reboot the inquiry — without the tribunal’s leave — including re-investigating the case and re-examining witnesses who have testified under oath since the inquiry committee began its intermittent hearings in Winnipeg in May of last year.

Those witnesses included the judge’s husband, Winnipeg family law lawyer Jack King; complainant Alexander Chapman, who accuses the judge of participating in her husband’s sexual harassment of him; Thompson Dorfman Sweatman’s former managing partner Michael Sinclair; and former Manitoba Court of Appeal Justice Martin Freedman, who chaired the Manitoba judicial appointments advisory committee that cleared Associate Chief Justice (Family Division) Douglas for appointment to the federal bench, despite the bondage and other sexually explicit photographs of her that King says he circulated on the Internet without her knowledge or consent.

Asked for his comment on Côté’s proposal to start the inquiry from scratch, Chapman’s counsel Rocco Galati was incredulous. “Who is master of this house?” he queried. “Is it the inquiry committee or is it independent counsel? My client is opposed to this, and will be objecting to it.”

Galati argued that a do-over of the inquiry would not only waste taxpayer dollars, “the independent counsel neither has jurisdiction, nor does this make any sense. It’s like saying midway through the trial, the Crown is replaced and what? The trial judge is supposed to rehear all the evidence from scratch? No! This is ridiculous.”

At press time, inquiry watchers were also speculating whether Côté will opt to drop the sexual harassment allegation — the most serious of the four misconduct allegations facing the judge. Last July, the inquiry committee itself said it was prepared to hear counsel submissions “on whether there was a basis for proceeding further” with the sexual harassment allegation. It did so without hearing Justice Douglas’s evidence, who is not expected to testify until after the other witnesses.

Côté wouldn’t say where she is going with the sexual harassment allegation, but Galati argued she can’t choose to drop it. “Only the committee can narrow or expand the terms of the inquiry,” he insisted.

Meanwhile, the judge’s counsel, Sheila Block of Torys, has asked the Federal Court to stop the inquiry committee from resuming its hearing on July 29, pending the “full and final determination” of her Federal Court application last August to permanently shut down the tribunal.

Block contends that the inquiry committee revealed bias in having its counsel, George Macintosh, “aggressively” question witnesses supportive of the judge’s defence, while also demanding that the former independent counsel (Borden Ladner Gervais’ Guy Pratte and co-counsel Kirsten Crain, who mysteriously quit last August) tone down their questioning of Chapman, the judge’s accuser.

“The reasonable apprehension of bias in these proceedings contravenes the duty of fairness owed to Douglas ACJ as the respondent judge and renders it impossible to continue the Inquiry Committee hearing constituted by the CJC,” Block says in her stay motion filed in Federal Court last month. “Requiring Douglas ACJ to appear before the Inquiry Committee, in advance of a determination on the [reasonable apprehension of bias] application would cause irreparable harm to Douglas ACJ and to the administration of justice.”

University of Manitoba law professor Karen Busby told The Lawyers Weekly it wouldn’t serve the interests of justice for parallel processes to go on, with the inquiry committee resuming its hearing, even as the Federal Court reviews whether the committee (comprising three chief justices and two senior lawyers) showed apparent bias against the judge.

Bias applications “are rarely successful,” Busby acknowledged. But she noted that both the judge and Pratte complained to the Federal Court last August about the inquiry committee’s questioning of witnesses.

“So it’s not a frivolous case,” she observed. “And for that reason I think the process needs to be respected and this matter [of alleged apparent bias] should be determined before the main [CJC] inquiry hearing is reconvened.”

Busby predicted that if the inquiry does continue, the main issue will not be sexual harassment. “The most serious allegation against [the judge], in my view, is whether or not it’s incompatible with judicial office to have sex pictures irretrievably on the Internet,” she said. “Reasonable people will disagree on that.”

Busby, an expert on procedure, also questioned why the Federal Court judicial review proceedings are taking so long. One year after the review was launched, the parties are still bogged down in procedural issues. A preliminary motion to determine who should be the respondent for the judicial review took four months to decide.

“In my client’s view, to date, they’ve moved as fast as a corpse,” agreed Galati. “I think the delay is both with the parties and the court. I think this stay [application], and the entire application for judicial review, should be heard on an expedited basis.”

The inquiry committee itself is concerned about the delay. According to court documents filed by Block, Macintosh wrote counsel in April to inform them the inquiry will resume its hearings July 29, with further dates to be set in August, September, and October “given the continuing delay from the Federal Court process.”

Block’s stay motion is slated to be argued July 3, but the Federal Court has not set a date to argue the merits of Justice Douglas’s judicial review because it remains mired in procedural wrangling, involving many senior litigators, over issues such as who should properly defend the inquiry committee’s actions (the Federal Court ordered the Attorney General of Canada to do so in May, over the AG’s protests); who can intervene in the case; and whether the CJC can be forced to disclose why Pratte abruptly quit last August.

Meanwhile, the costs of the inquiry, which could face years of appeals both on procedure and on the merits, are mounting. Just the legal fees of various counsel from April 1, 2011 and March 31, 2012 exceeded $1 million, according to the judge’s court filing. “This amount represents expenses before the Committee’s hearing began in May 2012 for which at least 10 counsel the Committee and CJC staff had to travel to Winnipeg to attend,” Block writes.

The legal expenses for the 2012-2013 fiscal year promise to be even larger.

In the meantime, the judge has been collecting her salary (more than $315,000 annually), while being barred from doing her job since 2011.

In her response to the allegations before the CJC, the judge denies that: she participated in her husband’s admitted sexual harassment of Chapman; she deliberately changed a relevant entry in her diary and misled former independent counsel about it; the photos she and her husband say he posted on the Internet, without her knowledge or consent, so undermine her image as a judge that she can no longer do her job and should be removed from the bench.