Sunday, October 05, 2014

Douglas Inquiry Update: It's getting whackier folks if that's possible!

Good Day Readers:

As many of you are aware the Douglas Inquiry is set to resume in Winnipeg next month (November 24) after a hiatus of more than 2 years. Two weeks have been allocated.

An anonymous reader suggested CyberSmokeBlog check the following link:

At the top of the page you'll find the heading:

Inquiry Committee regarding the Honourable Lori Douglas - Information regarding the Inquiry Committee and Related Procedures.

CSB's analysis is based on its understanding of the first three documents, namely:

(1) 2014-09-04   Notice of Independent Counsel's intention to seek directions from the Inquiry Committee

(2) 2014-08-20   Notice of Allegations

(3) 2014-04   CJC correspondence re Independent Counsel

Here's all the aforementioned legalese, legalspeak and legal wrangling in a layperson's nutshell.

Document 1: Independent Counsel Seeks Direction From Inquiry Panel to Expand Inquiry

Suzanne Cote (Montreal BigLaw Osler Hoskin & Harcourt) would like to expand the scope of the Inquiry by adding another allegation against Associate Chief Justice Lori Douglas to the 4 already on the table - Inappropriate use of the Representational Allowance Provided For under Subsection 27(6) of The Judges Act.

Recall last year Manitoba Chief Justice Glenn Joyal filed a complaint against Lori Douglas with the Canadian Judicial Council that she'd inappropriately claimed and received expenses.

Ms Cote subsequently received a copy of the complaint from the CJC contacting Sheila Block (Toronto BigLaw Torys) Head of Lori Douglas' defence team asking for comment and particularization. Ms Block refused.

Suzanne Cote is now arguing since February 2011 Lori Douglas has had no administrative duties, therefore, expenses such massages, psychological counselling and air travel to Toronto to consult with her legal team are out of bounds.Further, at the time Ms Douglas signed a Claimant Statement with the Office of the Commissioner of Federal Judicial Affairs it was inaccurate and in violation of the terms and conditions.

Note: When the Joyal complaint was filed Ms Block expressed public surprise claiming CJ Joyal was already aware 75% of said expenses had been pre-approved..

Sheila Block is arguing you can't do that; Suzanne Cote thinks she can so has asked for Judicial Council approval. What this filing does is place Lori Douglas and her legal team on notice Ms Cote is hoping to expand the scope of the Inquiry.

The Bottom Line: Look for Suzanne Cote to prevail.

Document 2: Permission to Expand/Revise an Existing Allegation

This is the key document. In it Suzanne Cote is putting Lori Douglas, her defence team and the CJC on notice of the allegations she plans to pursue. Of particular significance is paragraph (3)

Today, Independent Counsel is also providing notice with respect to the inclusion within the scope of the Inquiry of additional allegations pertaining to (1) ACJ Douglas' alleged involvement in the sexual harassment of Alexander Chapman; and (ii) ACJ Douglas' use of the representational allowance provided for under subsection 27(6) of the Judges Act. If the Inquiry Committee directs Independent Counsel to include any of these allegations in the scope of the Inquiry, Independent Counsel will provide notice of this to ACJ Douglas as provided for in subsection 5(2) of the By-laws.

CyberSmokeBlog has emphasized what it considers the key portion. The second part has already been discussed above.

Points to Consider

(i) When the words "... inclusion within the scope of the Inquiry of additional allegations pertaining to (1) ACJ Douglas' alleged involvement in the sexual harassment of Alexander Chapman ..." the natural tendency is to assume Ms Cote is seeking leave to expand the harassment allegation. But is that necessary the case?

The original late May 2012 Notice of Allegations sent by former Independent Counsel Guy Pratte to Lori Douglas' lawyer Sheila Block states:

Alleged Sexual Harassment of Alex Chapman

Paragraph (3). In April to June of 2003, Ms. Douglas (as she then was) knowingly participated with her husband and then-law partner Jack King in the sexual harassment of Alex Chapman, Mr. King's client. Among other things:

a) Mr. King directed Mr. Chapman to a website where Mr. King had posted graphic photos of a sexual nature of Ms. Douglas, together with two ads soliciting black sexual partners for Ms. Douglas;

b) Mr. King emailed graphic photos of a sexual nature of Ms. Douglas to Mr. Chapman;

c) Mr. King had various communications with Mr. Chapman about matters of a sexual nature (by telephone, e-mail and in person);

d) Ms. Douglas had two social encounters with Mr. Chapman, at one of which Ms. Douglas and Mr. Chapman engaged in touching; and

e) Mr. Chapman's submission to their conduct was an implied condition of the continued provision of legal services to Mr. Chapman by Mr. King.

4. Mr. King and Ms. Douglas' purpose in carrying out the acts set out above was to persuade Mr. Chapman to have a sexual relationship with Ms. Douglas.

5. Ms. Douglas knew or ought to have known that the conduct described in paragraph 3 was unwanted by Mr. Chapman, and would cause him discomfort, offence or humiliation and, in any event, was inappropriate in the context of a solicitor-client relationship.

However, could Ms Cote's reference to "additional allegations" pertaining to Lori Douglas' alleged sexual harassment of Alex Chapman amount to addition by subtraction? She drops some of the above sub allegations? Would a more appropriate descriptive have been "revision?" Plus thanks in large part to Manitoba's Chief Justice Glenn Joyal she has a potential backup replacement - misuse of the representational allowance available to federally appointed Justices. Sometime you have to think like a lawyer to beat a lawyer!

The "Revised" Scorecard

As it currently stands when the Douglas Inquiry reconvenes later this month Lori Douglas could be facing up to 5 allegations:

(1) A "revised" Alleged Sexual Harassment of Alex Chapman depending on the Council's ruling

(2) Alleged Failure to Dinclose in the Applications Process (same as before)

(3) Alleged Incapacity as a Result of the Public Availability of the Photos (same as before)

(4) Alleged Failure to Fully Disclose Facts to Independent Counsel (same as before)

(5) Use of the Representative Allowance provided for under subsection 27(6) provided under subsection 27(6) of The Judges Act (possibly new depending on the Council's ruling)

Document 3: Role of Independent Counsel Versus Canadian Judicial Council

Even before the Inquiry began former Independent Counsel (Guy Pratte) was raising questions about the role, responsibility and relationship between Independent Counsel and the Council. Once it began these were exacerbated when the Inquiry Committee asked Inquiry Counsel (George Macintosh) to re cross examine two key witness.

Shortly after the Inquiry adjourned Mr. Pratte filed an application with the Federal Court of Canada seeking clarification (i.e. Judicial Review) of the Independent Counsel-Council relationship. In Douglas versus Canada among other considerations it ruled that the Independent Counsel did indeed enjoy a client-solicitor type relationship with the CJC in certain key areas particularly the presentation of evidence.

Shiela Block had written to the the Council challenging this interpretation but, it effect, was swatted away.She was also assured that Chief Justice MacDonald, the Council's Chairperson of the Judicial Conduct Committee, had provided Ms Cote with no instructions on how to present her case.

The Witnesses

Both sides have agreed on a menu of 14 witnesses only 4 1/2 of whom have testified - the 1/2 is to be recalled once the Inquiry reconvenes.

The Burning Question Douglas Versus Chapman?

Will Lori Douglas testify? Given she's a key witness and the Inquiry has subpoena powers, it's hard to envision she won't. But this is where it could get quite interesting. Alex Chapman has already testified. What if she contradicts him all over the place will he be re-called? Remember Suzanne Cote is already on the public record as suggesting she may wish to re-interview for herself some of those witnesses who have already testified.

He said?
She said?

The Douglas Intuiry: Mother of All Canadian Judicial Council Inquiries?

There are only two things of which you can be certain given how whacky this Inquiry is turning out to be. The lawyers will always win even when they lose because regardless they're constantly collecting billables. You the taxpayers will always lose even when you win because you're paying the billables.

A-bee-a - a-bee-a - a-bee-a ..... Th-th-th-that's all folks ..... at least for now.

Clare L. Pieuk


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