Saturday, November 30, 2013

Mallick versus Blatchford the duelling banjos!

Good Day Readers:

It seems a tad coincidental that the Toronto Star's Heather Mallick and the National Post's Christie Blatchford would both have articles today about the moribund Douglas Inquiry. A saving grace is that each have taken a somewhat different approach. If Ms Mallick is to be believed Lori Douglas is the judiciary's answer to Rob Ford while for Ms Blatchford the Canadian Judicial Council's procedures and processes are deeply flawed. Surprise!

Two comments. When the now former Inquiry Committee asked Inquiry Council George "Gentleman" Macintosh from Vancouver BigLaw Ferris Law to cross-examine lawyer Jack "Polaroid" King (Lori Douglas' husband now with not so BigLaw Winnipeg's Petersen King) - after original Independent Counsel Guy "The Cat" Pratt and Kirsten "The Pain" Crain (BigLaw Bordon Ladner Gervais - Ottawa/Montreal/Toronto) had finished, it was with very good cause.

George K. Macintosh, Q.C.

Way back in July of 2012 when "Gentleman George" finally had at "Polaroid" it seemed every second sentence was, "I can't remember" or "I can't recall" or "I have no recollection" or "I don't know" ..... ad nauseam. Never before has CyberSmokeBlog witnessed such memory loss by someone testifying under oath.

From the get go Lori Douglas via her taxpayer funded defence "team" has steadfastly maintained she knew absolutely nothing about the internet pictures it was all the work of her husband but here's where it could get most interesting. Christie Blatchford noted Bill C-13, Protecting Canadians from Online Crime Act, is currently before the House of Commons designed to curb the internet distribution of sexually explicit photographs without an individual(s) consent. Undoubtedly, this is a reaction to the proliferation of cyberbullying.

With the Conservatives enjoying a majority, it's likely to pass the required three readings. Hopefully, the Senate will then find the wherewithal to wake up long enough to shake the Mounties' investigation to pass it leaving automatic Royal Assent as the only formality to its passage into law.

Given the glacial pace at which the Douglas Inquiry is moving could Bill C-13 become law by the time the Inquiry eventually concludes and if so what possible implications could this have for Jack King and his defence?

It's time for you, Readers, to be the judge and jury. Mallick or Blatchford?

Clare L. Pieuk

Porn photo judge Lori Douglas just won't go away: Mallick

Manitoba judge who was in explicit photos won't quit, and no one can make her go. Meanwhile she's getting paid hundreds of thousands a year to stay at home.

By Heather Mallick, Columnist
Saturday, November 30, 2013
Lori Douglas posed for explicit pictures, she says without her knowledge, before she became a judge. She continues to earn $324,100 plus expenses.

Jack King, husband of Manitoba Justice Lori Douglas, posted explicit photos of his wife online in 2003. They're still married. (John Woods/The Canadian Press File Photo)

Manitoba Queen’s Bench Justice Lori Douglas is the judiciary’s Rob Ford.

She will not resign, no matter how many hearings are held into her deceits, no matter how angry the public is. Judges across Canada — and ethical lawyers hoping to become judges — must be desperately hoping she’ll just do the decent thing and go away. She will not.

And as the city of Toronto has learned, there is no way to make an unwanted official depart. She clings to the cliff.

At this point, given that Douglas must know she can never again function as a judge, it is grotesque that she has been sitting at home since September 2010 pulling in a not unpleasant salary of $324,100 plus expenses.

The people financially profiting from this ludicrously extended investigation into Douglas’s secret history are all on the public tab. No wonder the bright and energetic committee of the Canadian Judicial Council — five senior judges — investigating Douglas resigned en masse November 20, saying the inquiry had gone on for two years and had become excessively time-consuming and expensive. The process may well have to start all over again, with new senior judges.

In the spring, Manitoba Chief Justice Glenn Joyal himself complained to the council about Douglas’s expense claim for therapy. Yes, this happened. She is one of his own judges. No chief justice “can or should be indifferent” to the use of public funds, he said.

It was good to hear.

The problem is not just that Douglas posed for porn photos posted on the Internet in 2003 — she says without her knowledge — by her sinister husband Jack King, but that she said on her application to be a judge that her past was pristine. Then, after an inquiry began, she allegedly altered evidence in her own favour. The list of reasons she cannot be a judge is long.

The inquiry committee, headed by Alberta Chief Justice Catherine Fraser, studied the deeply flawed federal judicial appointment process, a gracious and secretive charade that checked no facts and kept no records. At the Winnipeg hearing last year, I heard senior judges search their memories, which were wanting.

It investigated whether Douglas knew that her husband was trying to lure her into sex with his black client. (King, to whom she remains married, is a white lawyer, formerly of Rhodesia. He posted the photos on a website called Dark Cavern, which caters to those hunting for interracial sex.) Douglas did not show up to explain herself.

The committee was populated by brilliant lawyers like its own George Macintosh, whose questioning was as fast and damning as anything in a movie script, and the famously tenacious Rocco Galati. And then there were those who were less so, who were petulant and obstructive. But they were all paid well. Time passed.

This week, Douglas’s lawyer has been arguing in Federal Court that the committee of judges had no authority to pronounce on Douglas’s conduct.

To which one responds: Who else could do it? Certainly not politicians.

Douglas has been expensing visits to her therapist and flights to Toronto to meet her lawyer. There are shades of the Senate expenses scandal here, people on an ethical borderline. Douglas was said to be terribly upset about the committee viewing the porn photos, disregarding the fact that the photos were available online at the time to me and anyone else on the planet who cared to search.

It does not matter whether the poor woman has the right to expense the therapy she doubtless needs. She was sexually humiliated by her awful husband in the most brutal way. I have seen photographs of her manacled to a bed, of her exposing her genitals, both online and via a — careless would be the generous word — display of these photocopied photos in a Winnipeg courtroom by King himself.

Feminists — I am one — have defended Douglas, who has the same right to a thrilling sexual life as we all do. I don’t enjoy condemning other women. Women, especially those in the airy professional heights, need support from their sisters. But feminism is not Buddhism, as the feminist Caitlin Moran says, and even a Buddhist would pause over Douglas’s tale.

Judges are in a different category. Douglas’s own actions fenced in her legal career. She can no longer render judgment in any cases involving, for instance, divorce, privacy, blackmail, non-white defendants, white defendants or the Internet.

She can’t even rule on any cases with jail terms, for instance, because a good lawyer might raise the fact that the judge is aroused by handcuffing. Lawyers object to things. It’s their job.

Any judgments she made would be appealed, endlessly, just as she is appealing endlessly. A reasonable observer might say that the longer she draws out her case, the longer she earns her massive salary, allowances, expenses and pension rights.

The only good thing to come out of this mess would be a revamped and modernized judicial appointment process that wasn’t conducted amid a cozy chatting circle of Winnipeg lawyers, as happened in this case.

Linked in haste, the judiciary and the distraught Douglas must part. A good judge, indeed a good Canadian citizen, would resign.

Christie Blatchford: Handling of Lori Douglas Inquiry into nude photos allegedly damaged integrity of Canadian Judicial Council

Saturday, November 30, 2013

In 2002-2003, Jack King had posted intimate pictures of Lori Douglas, left, on the hardcore website and tired to entice Alex Chapman, right, into having a sexual relationship with her; Judge Douglas has always vigorously denied she had any idea what her husband was doing with their private pictures. (CBC; David Lipnowski for National Post files)

The Canadian Judicial Council allegedly has damaged its very integrity and its ability to offer procedural fairness to judges by its handling of the Lori Douglas case.

Ms. Douglas is the Manitoba Associate Chief Justice who remains in limbo as the public hearing into allegations against her collapsed about 16 months ago amid charges the inquiry panel was biased against her.

Judge Douglas is facing four allegations, the most scandalous — and the one that has led to her being described in the cruel shorthand of newspaper headlines as the “nude judge” — that she participated with her lawyer husband Jack King in the sexual harassment of Alex Chapman, a former client of Mr. King’s.

She has always adamantly denied knowing what her husband was doing with their intimate bedroom pictures — he posted them online on a hard-core sex site and tried to engage Mr. Chapman into instigating a sexual relationship with her — and indeed, at the aborted hearing held in Winnipeg in 2012, there was considerable evidence Mr. King had been acting on his own, without Judge Douglas’s knowledge or consent.
But in the latest procedural step, her lawyer, Sheila Block, argued this week in Federal Court in Ottawa that not only did the inquiry panel muck up the hearing itself, the CJC by claiming it has a solicitor-client relationship with its “independent counsel” has also vitiated the broader duty of fairness it owes the more than 1,000 federally appointed judges it governs.

The claim of privilege stands in sharp contrast to the CJC’s own bylaws and policies, which emphasize that the independent counsel doesn’t report to the CJC, take direction from it or owe it the traditional lawyer’s duty of loyalty and confidentiality.

The position is also diametrically opposed to what the CJC itself said just three years ago in a report on another disciplinary hearing involving another judge, Paul Cosgrove.

The solicitor-client claim is critical because it means the CJC can give independent counsel “a secret mandate,” or marching orders, and then protect the communications detailing the secret orders from disclosure.

"The strongest case possible

In fact, Ms. Block told Judge Richard Mosely, that’s pretty much what happened in the Douglas case.
The first independent counsel, appointed by the vice-chair of the CJC’s judicial conduct committee Neil Wittman, was Guy Pratte.

Even before the hearing began, Mr. Pratte had reason to be concerned: In a ruling, the inquiry committee had ordered him to present “the strongest case possible” against Judge Douglas.

Mr. Pratte objected, noting his role was to act impartially and in the public interest, not as a prosecutor or hired gun.

Guy Pratte resigned from a Canadian Judicial Council hearing examining the conduct of a senior Manitoba judge. (David Lipnowski for National Post)

He was also directed to add to the formal “notice of allegations” Mr. Chapman’s complaint, though it had not been referred to the inquiry panel by the review panel.

(Mr. Chapman, as his testimony at the hearing revealed, is a deeply suspicious, highly litigious man who once sued his own mother and who has a criminal record for arson, theft and uttering threats under his old name — all of which rendered him a rather unreliable fellow in whom to root a complaint of wrongdoing that could see Judge Douglas lose her job.)

The inquiry panel hired George Macintosh as its own lawyer, called committee counsel, and Mr. Macintosh was quickly mired in a new controversy.

Even as the inquiry panel told him on the Q.T. to instruct Mr. Pratte and his co-counsel to “tone down” a determined but hardly harsh cross-examination of Mr. Chapman, it directed Mr. Macintosh to so aggressively cross two witnesses whose evidence was supportive of Judge Douglas — Mr. King and lawyer Michael Sinclair, the managing partner of the firm where Judge Douglas, then a lawyer, and Mr. King both worked — that Ms. Block demanded the committee recuse itself because it was biased against the judge.

Alex Chapman (Boris Minkevich/Winnipeg Free Press)

The committee refused, evidence continued under protest, and the hearing adjourned as scheduled.

But by August, the thing was wholly off the rails: Both Mr. Pratte and Ms. Block separately applied for judicial review of the panel’s decision, with Ms. Block asking that the inquiry be stopped in its tracks (that was the court proceeding this week).

A week later, Mr. Pratte abruptly resigned.

A new independent counsel was retained, one of her first acts was to withdraw the application for judicial review that Mr. Pratte had filed.

It was when Ms. Block sought to get his letter of resignation — so she could see why he quit, though everyone who was at the hearing could have guessed — that the CJC asserted solicitor-client privilege for the first time, refusing to disclose the letter on the grounds that it was privileged.

Jack King leaves court on July 23, 2012. In his two days of testimony, he said that his wife Lori Douglas did not know he posted naked photos of her on the internet. (Trevor Hagan/The Canadian Press)

With the judicial review application looming in Ottawa this week, last week the five-member inquiry panel abruptly resigned in what in a real-world context looked like a snit — a pre-emptive snit at that.

In their 11-page letter, the three judges and two lawyers of the inquiry panel complained that “judges are not entitled to a process that includes unlimited steps and interlocutory privileges for the judge at public expense.”

But since there is no appeal from an inquiry panel decision, it’s hardly a shocker that a judge would fight tooth and nail at every stage of it for a fair shake.

Judge Mosely didn’t indicate Friday when he would release a decision, only that it would need to be in both official languages, which usually tacks on an extra month.

Norman Sabourin, the CJC’s executive director and general counsel, couldn’t say how fast a new inquiry panel could be appointed, only that it’s “likely” there will be one and that it takes time.

All this unfolds as in the background the federal government has moved to criminalize the non-consensual distribution of “intimate images.”

There are many involved in the Lori Douglas case, starting but not ending with her husband and Mr. Chapman, who have had a go at that sort of shameful conduct.

Postmedia News


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