5 September 2012

All stand for the judge: Manitoba’s Lori Douglas

Guy Pratte, the lawyer leading the inquiry into a Manitoba judge, has resigned. Difficulties have arisen over the purpose of the inquiry panel, over whether it is to oversee in a fair manner all sides of the issue, or to examine the testimony and evidence against her; or, as Pratte is reported as saying, “the inquiry committee cannot act as both a referee of the proceedings and an active participant” (Lawyer leading inquiry into Manitoba judge’s nude photos quits after disagreement over questions, Aug 27, 2012).

According to Christine Blatchford, Pratte explained that the problem was Mr MacIntosh, who was “withering in his questions, particularly of Mr. King, and sometimes sarcastic” (Lawyer quits nude judge inquiry, Aug 27, 2012). In the actual news piece on this, however, it isn’t the judge’s husband King who is mentioned as the main victim; rather it is the judge herself (Lawyer leading inquiry intoManitoba judge’s nude photos quits after disagreement over questions, Aug 27, 2012).

A commenter online made suggestions, which seem to be quite appropriate, and probably make more sense than taking this to a judicial review as a general issue about the functioning of the inquiry panel. This is what fg wrote:

“It may be time to close the book on the open-ended overly-broad ‘inquiry’ systems and choose administrative law systems in which fundamental justice features prominently. We need transparency on the appointment of judges and a clear discipline system that sets out a complaint or charge, including exactly how it has breached a specific stated standard. At the moment, we have neither.

Once prosecution witnesses exonerate a judge on some aspect of it, shouldn't that be promptly dropped so other aspects and any remaining complaint or charge can go forward in a clear manner? Shouldn't counsel be able to apply to have it dropped?

The public interest is served by clarity, fairness and fundamental justice. Without these, any decisions will merely be endlessly debated and interpreted on vagaries and innuendo and good law will not develop.

Most Canadians fear going to court because they fear being disregarded, treated with contempt and being overwhelmed by an opaque, confusing unclear system in which money too often seems to triumph over fairness. Canadians want and deserve change.

A pared down hearing with a clear direction and a final decision that answers the question both specifically but also broadly, is required, as case-law is needed here.

In the grand scheme of what must be disclosed in an application to be a judge, I hope the panel creates a specific laundry list of what is always required, even if some other aspects are left open.

Given the known practice of hidden tribunal decisions in Canada, it is fervently hoped that hiding decisions and corruption will make the list, along with being involved in untenable legal conflicts of interest with substantial legal consequences.

We need a legal clean-up in Canada, that will take the process to task, create clarity.

The decision must also protect everyone from being victimized by unscrupulous actors bent on attacking careers.” (fg, in Lawyer quits nude judge inquiry, Aug 27, 2012).

I agree with fg, to a certain extent. This whole matter of the judge has become so complex that one can only wonder if it is intentional to make it so that the ordinary person doesn’t have a chance of understanding the decisions made or why. This latest fiasco was simply a problem of one Mr MacIntosh, a member of the panel whose approach to questioning the judge apparently bordered on harassment, it was that antagonistic supposedly. On the other hand, how are we to know if this impartial member is actually against the judge or subversively on her side, seeking a way to have the entire proceedings dropped? Surely it isn’t in his best interests, as a lawyer, to behave this way towards a judge, no matter what he may feel about her actions. And as a member of the inquiry panel, shouldn’t he know better?

So why isn’t it now Mr MacIntosh who is subject to questioning, and removal from the panel, instead of the panel itself under threat of dismissal and a further legal manoeuvre of a judicial review asked for, to handle the situation.

As others have pointed out, it is odd that the ones who have the responsibility of looking into the matter of the judge Lori Douglas are members of the legal community themselves. Anyone who has tried to get a harassment matter resolved within the university environment knows the futility of engaging in an internal inquiry. The organization itself has the power to manipulate the people involved and the way the incident is understood, in whatever way it chooses. Such internal inquiries surely are next to useless.

For the victims, it is like banging your head against a brick wall – or driving into one. In these most recent pieces about the case, the name of the original victim – Chapman, was it? – the black man – has been left out completely. The case has now been removed a step from the original issue – the questionable behaviour of the judge. The ‘victim’ is now judge Lori Douglas, who has been subjected, ‘allegedly,’ to harsh questioning.

One further matter, suggested by fg, is a “cleanup” of the legal system, or as he says, “We need a legal clean-up in Canada, that will take the process to task, create clarity. The decision must also protect everyone from being victimized by unscrupulous actors.”

It may not always be clear who is getting victimized and whose careers suffer, and if that is the problem in the longterm anyway. Complicate that by having to consider the changing norms of society, in the areas of sex and sexuality, for instance, and how these are related to work and careers, and sorting matters out can be a challenge far beyond the knowledge of members of the legal system. Increasing clarity may not always be possible.

For anyone who has forgotten the original issue, read ‘Lori Douglas is not a victim,’ July 26, 2012. There has been much written between July and the end of August, but this latest problem – of what the judge has had to put up with in the inquiry - is not how the matter started. Let it not end on this note.

Lawyer leading inquiry into Manitoba judge’s nude photos quits after disagreement over questions, Canadian Press, National Post, Aug 27, 2012

Lawyer quits nude judge inquiry, By Christie Blatchford, National Post Full Comment, Aug 27, 2012

Lori Douglas is not a victim, By Georgialee Lang, The Star, July 26, 2012


Chris Budgell said...

This perspective is very refreshing, and I note, not typical of the perspectives the public is getting from the media or the legal profession.

My own opinion comes with a strong personal bias, as I submitted my first complaint to the CJC in 2010, a few months after Mr. Chapman's, and a second one very recently. Both were summarily dismissed, but now I'm following the examples of Guy Pratte and Sheila Block with an application for judicial review in the Federal Court.

It is clear the judges cannot judge themselves.

Sue McPherson said...

Response to Chris:

I have also submitted a case for approval for judicial review - in England, several years ago. I did this after going through the process of an internal complaints' procedure, at the university there, including having someone they called The Visitor - a local Lord - do his own decisionmaking on the case. As you can tell, it was not resolved internally, nor by the Visitor, but neither was it permitted to go to Judicial Review. It took months to do the research, and being a Canadian student (and having taken research and stats at Western) I knew how to conduct research and present it (at The Strand, in London, UK). But it was simply dismissed and I was not allowed to appeal. And the transcript got lost, temporarily, so I could do nothing.

So I have to admit that I am biased too when it comes to such matters. Here is a piece is also about the same sort of issues (though not Judicial Review) - http://suemcpherson.blogspot.ca/2012/08/brian-crockett-not-another-michael.html . Sometimes, people with power and the community network to provide support don't realize the harm they can do to people who have next to nothing - loss of career, a meaningful life, and so much more. In fact, I think they don't see it as harm sometimes. Rather, they can so easily place blame on the one who has lost out, and simply heap more on them.