Tuesday, January 05, 2016

Will he or won't he ..... she said he said?

Good Day Readers:

Upon reading the Canadian Lawyer Magazine interview with former Manitoba Court of Queen's Bench Associate Chief Justice Lori Douglas, three considerations jumped out and hit CyberSmokeBlog in the face.

"Stormin' Norman" Sabourin

When Mr. Sabourin was told Lori Douglas had agreed to an interview with the CLM he advised her do that and the Canadian Judicial Council will publish its version of events but when later contacted by the magazine he refused comment.

You'll note Ms Douglas claims when her late husband lawyer Jack King took the pornographic photographs at least some of which later ended up on the internet she did not know if the camera had film. Huh? Given the potentially explosive content of the material isn't that akin to having a gun pointed at your head not knowing whether it's loaded or not? Best to duck so you can ask questions later.

Next. Lori Douglas says in light of what has subsequently transpired she is not satisfied with the settlement to which she agreed ending this CJC's worst nightmare among other reasons because she received a reduced pension having served only 10-years on the bench instead of the required 15. Even at a reduced rate her pension and benefits package will be much, much superior to anything most Canadians (unless, of course, you're a sleazy politician) will receive after working 30-years, that is, if they even have one.

She could have said "no" and been cross examined under oath by the Inquiry's Counsel. To CSB the interview smacked of self-serving. Don't imagine Canadian taxpayers will have to hold a tag day for her any time soon.

Irony of ironies

Apparently, she's now working for Winnipeg's Petersen-King where her late husband used to practice. That name should sound familiar because it's where lawyer Marie Matousis was injured by a letter bomb.

Will Lori Douglas next write a kiss and tell all book? Let's see what about, Beneath Judicial Robes.

Sincerely,
Clare L. Pieuk
Behind the headlines

Written by Glenn Kauth

Monday, January 4, 2016
Lori Douglas is proud to point out her former offices as she passes by the courthouse in downtown Winnipeg, but she pauses when she notices something. “Oh, the light’s on,” she says, obviously saddened at the idea that someone else has moved in. Despite the lingering emotions over five years of proceedings at the Canadian Judicial Council, Douglas says she’s doing better than ever since her retirement from the bench in the spring. “I feel fine,” says Douglas, 59. “I haven’t been so well now for five years.”

Douglas, of course, has largely been silent amid years of proceedings over the infamous nude photos of her posted on the Internet by her now-deceased husband, lawyer Jack King. But she’s ready to talk now that the years of wranglings at judicial council are over.

In an exclusive interview in the fall, Douglas spoke to Canadian Lawyer about her experiences. Not surprisingly, she’s very critical of the judicial council and its process in the case against her.

Nowadays, she’s back to work on a limited basis at King’s former law firm, Petersen King, where she handles family law files. She’s also planning to do some work at the University of Manitoba’s Robson Hall Faculty of Law. “I’m looking forward to some presence at the university,” she says. “I like teaching. I like young people.”

It’s clear her home in a rural area north of Winnipeg remains a sanctuary for her. Besides working part-time in Winnipeg, she also does lots of gardening and takes care of the horses on her property. “I have a very close network of friends that are rural and horse-oriented,” she says. That home and many of those friends were also her rocks during the darkest days at the outset of the revelations of the photos and the judicial council proceedings against her. Initially, she thought things would blow over quickly when King’s former client, Alex Chapman, went to the Law Society of Manitoba in 2010 alleging she had sexually harassed him. At the time, she assumed the story “would be about Jack, not about me.” But as she realized the coming media storm after Chapman went to the CBC with his story, she began to worry about the effect on her parents, who didn’t know about the photos, even though word about them had spread throughout the Winnipeg legal community since 2003 amid Chapman’s legal proceedings against King. So she called her father to ask him not to listen to the news and had a cousin tell him directly.

Still, she felt she could continue to sit on the bench. She went to court the next day for a 10 a.m. hearing and managed to avoid the media waiting for her in the hallway by having the lawyers come into chambers. Later, however, the chief justice of the Court of Queen’s Bench came to say she should no longer sit. Douglas refused to step down as associate chief justice, insisting she could continue with administrative duties. She believed Alberta Court of Queen’s Bench Chief Justice Neil Wittmann, who as Vice Chairman of the Judicial Conduct Committee was considering the complaint against her, would quickly accept her explanations about what happened with Chapman and the photos.

Her optimism, however, began to vanish after she learned the judicial council had accepted an anonymous submission of a disc containing the photos. Then she learned it had sent them to Wittmann and the Chief Justice of the Manitoba Court of Queen’s Bench at the time, Marc Monnin, who now sits on the Manitoba Court of Appeal. “I just collapsed when I realized those two people had looked at them,” she says.

In the fall of 2010, she took a five-week medical leave and prepared to come back to work in the new year. She refused when Monnin suggested she should continue her medical leave. But things changed when her counterpart on the civil side, Justice Glenn Joyal, became Chief Justice following Monnin’s appointment to the appeal court. According to Douglas, Joyal told her she’d have no further duties with the court. “That’s when I had the rest of the crash. I got more and more depressed. I was stuck in the house. I had nothing,” says Douglas, noting her situation changed her perspective on the idea of house arrest for criminals rather than jail. “Got to tell you, I’ll never criticize that again. It felt like a prison.”

Douglas says she’d experience panic every morning. She relied on friends to help her get through the day. Once King would leave the house, they’d call. And if she could make it to noon, the panic would go away. Without that support, she says, she would have committed suicide. “I lost my job. I lost my life. I lost my reputation. If it hadn’t been for my son, there would have been little reason to keep on.”

So much of Douglas’ anger comes back to the photos. Noting people like Guy Pratte, the lawyer who initially served as Independent Counsel during the CJC proceedings, and his staff would have seen the photos, Douglas compares the situation to repeated rape. “What it felt like is the torture that’s inflicted in war on women,” she says. “It hurt, hurt, hurt, hurt, hurt like agony when I had to be interviewed by people who had looked at them.”

Even for Sheila Block, the battle-hardened litigator at Torys LLP who acted for Douglas during the CJC proceedings, the case took its toll. “I lost 13 pounds. It’s not a diet I’d recommend. . . . I couldn’t sleep,” she says, noting the case and the concern over the photos continued to cause distress for her and the two other Torys lawyers on the case, Molly Reynolds and Sarah Whitmore. “Every time we thought they wouldn’t do something, they did it,” says Block. “It was very taxing emotionally.”

The case, of course, wasn’t only about the photos. Among the allegations against Douglas was that she failed to disclose the situation with Chapman in a personal history form for her judicial appointment application; she was incapable as a judge because the nude photos question “the image and concept of integrity of the judiciary;” and she didn’t fully disclose facts to independent counsel by modifying a personal diary entry relevant to the investigation.

Given the criticisms of Douglas and other lawyers, Canadian Lawyer actively sought comment from the CJC about the issues raised. When contacted, executive director and senior general counsel Norman Sabourin expressed concern that the article wouldn’t give sufficient coverage of the CJC’s perspective.

“We have advised Lori Douglas that if she does come out with her version of the events, the CJC will come out with its own version of the events,” he says. In the end, Sabourin chose not to give an interview. The CJC did institute new procedures and bylaws governing the judicial conduct review process in July 2015, describing them as “designed to make the process more efficient and effective, while preserving judicial independence and fairness for both the complainants and the judges.”

On the issue of disclosing the matter at the time of her appointment to the bench in 2005, Douglas says she felt comfortable answering no to a question on one of the forms that asked whether there was anything she should disclose that could have a negative impact on her. “I answered no,” she says. “I said everybody knew, and it’s true,” she adds, referring to rumours and discussions about King’s settlement with Chapman dating back to 2003.

Further, Douglas notes former justice Martin Freedman of the Manitoba Court of Appeal was aware as well. At the time, he served on the judicial advisory committee for Manitoba and, according to Douglas, he said he had alerted the federal justice minister’s office about the issue.

In testimony in 2012 before the judicial council, Freedman said he was aware of the issue at the time and noted he had shared it with the committee. “There was a candidate for judicial office who, by all accounts, was an excellent candidate but regarding whom there was this situation that was arguably very important, and it was something that the committee had to know about,” he testified. The result, Freedman noted, was the committee merely recommended Douglas for an appointment rather than designating her as highly recommended. Freedman said the committee then notified a senior federal official, Margaret-Rose Jamieson, about the issue. “We wanted to flag this information for the minister’s attention because it was an unusual situation, to say the least,” said Freedman.

According to Douglas, she then got a call from Jamieson. “I answered every single one of her questions,” she says, adding Jamieson told her there were no concerns about appointing her.

Freedman noted he had been aware since 2003 of rumours about the photos and an incident in which King, who was then at a prominent Winnipeg law firm, had attempted to solicit a client to have sex with Douglas. Other Winnipeg lawyers say they knew about some of the issues as well. “It was reasonably well known in the community,” says Allan Fineblit, a former Chief Executive Officer of the Law Society of Manitoba who is now counsel at Thompson Dorfman Sweatman LLP. “I certainly knew that Jack had taken and put pictures up on the Internet and had been asked to leave the firm as a result,” says Fineblit, noting he didn’t know about the client issues involving Chapman.

A Manitoba judge, who asked to remain anonymous, echoes that view. “A significant number of lawyers and judges knew of this and knew of it when she was appointed,” says the judge.

For her part, Douglas notes part of the issue when it came to the judicial council complaint was whether it would be able to obtain the information from Freedman that she had disclosed the matter given his oath of confidentiality about the appointments. While accepting the complaint against her and moving ahead with the hearings was one way to get it, she believes the judicial council should have been able to subpoena his evidence to get what it needed without going down that route. “It should have to be dragging Martin in by the skin of his teeth to get the very evidence that could have solved this problem,” she says.

In the meantime, the hearings languished amid various Federal Court challenges along the way. At one point, Pratte filed an application for judicial review after the inquiry panel hearing the case turned to its own counsel to, in his view, aggressively cross-examine witnesses. Pratte also took issue with the inquiry panel’s view on solicitor-client privilege, and Douglas herself alleged there was a reasonable apprehension of bias against her. “It was completely improper,” says Block of the questioning by the inquiry panel’s Counsel, George Macintosh. Under the rules, she says, Macintosh wasn’t entitled to participate in the hearing.

In 2013, Federal Court Justice Judith Snider ordered a stay of the inquiry proceedings after considering Douglas’ allegations of a reasonable apprehension of bias by the inquiry committee due to improper cross-examination by its counsel. In 2014, the Federal Court considered an application for judicial review by Douglas that included an allegation that the judicial council’s assertion of a solicitor-client relationship with its independent counsel gave rise to a reasonable apprehension of institutional bias. In that case, Federal Court Justice Richard Mosley rejected Douglas’ allegation of institutional bias.

The original inquiry panel ended up resigning, with its chairwoman, Alberta Court of Appeal Justice Catherine Fraser, decrying the various procedural challenges. “Judges are not entitled to a process that includes unlimited steps and interlocutory privileges for the judge at public expense and certainly not one that defeats the wider public interest that must be served by the judicial conduct process itself,” she wrote in the panel’s 2013 reasons for its resignation. “Public confidence in the public complaints process that Parliament has established would be abandoned if anyone with standing could cripple its critical role simply by engaging in interlocutory judicial review.”

Block, however, rejects those assertions. “That is so false. . . . We went to trial,” she says. “We brought a [judicial review] after [Fraser] had George Macintosh do this dreadful examination of Jack King.”

For her part, Douglas challenges the notion that she could have appealed after the inquiry panel had concluded its work. “You can’t appeal,” she says, citing her concern about the need to ensure fairness while the hearings were going on rather than aftewards. “Mistakes that get made along the way do not get rectified,” she says.

She also reiterates her right to challenge the judicial council given the facts of the case. “If I had done something on the bench or even in my private life that could affect my ability to sit on the bench . . . maybe that’s different. But if you don’t do anything, why should judges just give up?”

Douglas also has significant concerns about how the judicial council operates and says she sees many areas for reform. “If I could revamp the process, I would try to duplicate what the law societies do across the country,” she says, citing the need to involve laypeople on inquiry panels.

She takes particular issue, however, with its approach to the photos in the first place. Rather than take her through a disciplinary proceeding, she argues, it should have stuck up for her given that she had done nothing wrong. “But nobody spoke up for me,” she says, suggesting the judicial council was afraid of bad publicity if it didn’t take the issue seriously when the story about the photos and the alleged harassment first hit the headlines. “I think the CJC was afraid of the news,” she says, suggesting the reaction would likely have been different if she had been a man. “If I had been a man whose wife was taking pictures, the CJC would have said, ‘Poor Joe. He’s married to a wing nut.’”

Douglas says she never actually saw the photos herself. “I didn’t know if he had film in the camera,” she says of King. “It was his thing.” While the photos ultimately put great stress on their marriage, she says it had been a great relationship up until then. The pair married when she was about 40 years old after meeting while working at the same law firm. King was very intelligent, she notes, but he could rub people the wrong way. While it had been a happy marriage up until 2003, things began to change at that point. 

“He had become odd, strange, difficult,” says Douglas, calling him “super depressed.” As for the photos, she suggests King may have been trying to “inject some sort of excitement into his life.” He went on to post the photos as he attempted to interest Chapman in Douglas, an effort that would land him and his wife in so much trouble.

What was her reaction when she learned of the existence of the pictures online? “Furious,” says Douglas. “All I said was: ‘How could you have done that to me?’ And he had no answer.”

According to Douglas, King would apologize to her almost every day. Eventually, she was able to forgive him. “I knew I would either kill him or I would kick him out,” she says, noting she ended up forgiving him. “I did forgive [him] because I primarily thought it was for my benefit to do so.”

Throughout the process, Douglas also worried about the impact of the case on her young son, particularly in regard to his relationship with King. She also worried about others teasing him at school, but “apparently, it never happened.”

Douglas, of course, isn’t the only person to express concern about what happened to her and question whether her circumstances merited a disciplinary proceeding. “People could not seem to get through their heads that she was a victim,” says the Manitoba judge who asked to remain anonymous. “People got caught up big time with, ‘She’s a judge. What’s the perception of the judiciary?’ Judges are human beings and they do what they do.”

Osgoode Hall Law School Dean Lorne Sossin also criticizes the “unsavoury and unnecessary targeting of Lori Douglas.” In his view, the proceedings against Douglas suggest the Judicial Council has yet to catch up to the realities of social media, the changing perceptions around cyber bullying, and the posting of people’s images online without their permission. “That seemed to be entirely lost on the CJC,” he says, citing the “overwhelming support” for Douglas as a victim of cyber harassment.

Fineblit also has his concerns about the notions of judicial propriety at the heart of the case. “To me, it makes a statement about what values we hold about people on the bench,” he says. “They all, I hope, had full and complete life experiences. There are judges on the court who have had bitter divorces and all kinds of experiences.” Still, he says there were reasons for the judicial council to consider the case. “I don’t argue with them considering the issue,” he says. “It’s a legitimate issue for consideration.”

Former Supreme Court of Canada justice John Major also has his criticisms. “The length of the hearing, the squabbling . . . I think you could say it was badly handled,” he says. “It’s the type of thing that I think could have been held less publicly and maybe taken a day.” He, too, questions the need for the hearing in the first place. “What is it she did that merited an investigation? An almost puritanical view of the whole thing seemed to take over,” he says, noting his disagreement with the notion that the photos harmed her credibility as a judge. “I just don’t think that’s sufficient reason to put her through the ordeal that she was in.”

Privacy, of course, was a key issue in the case given the allegations and the notion in some quarters that they didn’t merit a public hearing. While Douglas would certainly say they didn’t — “I don’t disagree with the privacy of it,” she says of the judicial council’s privacy protocols at the early stages of a complaint — the case did illustrate the tension between the notion of protecting judges from spurious complaints and the need for transparency when it comes to questioning judicial conduct. In Ontario, defence lawyers have expressed outrage over the Ontario Judicial Council’s decision to withhold much of the information surrounding a complaint against Justice John Ritchie by the Criminal Lawyers’ Association. The allegations in that case differ in that they claim Ritchie has failed to conduct his proceedings in a judicial manner, and in this case the matter didn’t proceed to a hearing following an arrangement to have him take educational courses. The Toronto Star and the association have been calling for full disclosure of the case, citing the public interest and insisting it should be a matter of public record.

Iris Fischer, a Partner at Blake Cassels & Graydon LLP who acts for the Star, says disclosure is important when it comes to proceedings against judges and calls the Douglas matter an “outlier.” “I think it’s dangerous to consider changing basic principles” on the basis of an outlier, she says.

She cites a more recent case, the Canadian Judicial Council’s decision to review the conduct of Federal Court Justice Robin Camp over his comments in a sexual assault case, as an example of why disclosure matters. “To me, that really exemplifies the importance of public scrutiny,” she says, noting the complaint quickly became available online with Camp himself issuing an apology after the judicial council proceedings came to light in November.

Fischer adds that with disciplinary complaints against other professionals being public, it’s important to hold judges to a similar standard. “It’s very easy to feel sympathy for Lori Douglas, and I think many people do,” says Fischer, suggesting that the alternative of keeping matters secret wouldn’t be any better. “The public wouldn’t be understanding why the council ruled as it did.” And, she adds, judicial councils have protocols for keeping matters confidential, “on a high threshold,” after balancing the arguments in favour of such an order versus its impact on matters such as the right to free expression. 

“There are processes in place for that,” she says of the confidentiality option.

While Douglas has now retired from the bench on a reduced pension after reaching 10 years of service last spring, she remains angry and says she’s unhappy with some of the things that have transpired under an agreement to end the case. The deal came about as she was getting ready to face a resumption of the hearings in 2014 when, she says, Reynolds mentioned the option of retiring. “I just couldn’t take it anymore,” she says of the prospect of more hearings. “It’s a compromise I can live with, but I’m not satisfied at all.” She notes the agreement means she gets a “much-reduced pension” and that she “didn’t know I was even entitled to retire until Molly [one of her counsel] told me.”

Much of her lingering rancour focuses on two things. First, she says the judicial council didn’t allow her to issue a statement she had prepared at the time in which she noted she had “endured, in silence, the media storm and the personal invasions of my privacy occasioned by the CJC process, particularly surrounding the two public inquiries struck and even prior to those investigations.”

Second, she says, the judicial council took a long time to return the photos that were at the centre of the case. “He took his sweet time about it,” she says of Sabourin. Torys destroyed them after it took a month to get them back, she notes.

Beyond that, Douglas says she misses being a judge. “I loved my job,” she says. In fact, one of the themes that arises repeatedly in talking to people about Douglas is the notion that many felt she was a very good member of the family court bench. “The result is they ruined an exceptionally capable judge’s career,” says Bill Gange, the lawyer at Winnipeg’s Gange Goodman & French who acted for King during Chapman’s legal proceedings against him.

Douglas was an “outstanding family division judge,” says the Manitoba judge who asked to remain anonymous. “This is a story in which there are no winners, and she’s a big loser.”

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