Judges are human too … but
By Gary Joseph
Managing Partner
MacDonald & Partners LLP
Come on people! Do we really need to hear and read about the intimate sex life of two consenting adults … even if one is now the Associate Chief Justice of Manitoba?
The judicial inquiry being conducted in Manitoba is exploring a host of salacious matters surrounding the conduct of Associate Chief Justice Lori Douglas, a sitting judge of the Court of Queen’s Bench. The particulars of her relationship with her husband and with the alleged sexual “invitee” are of little interest to me. While the thought of the proposed threesome may titillate some, the real focus here should be on:
1) Did the judge lie on her application for the bench and if so, what are the consequences?
2) Did she change her diary notes to place herself in a better light at the inquiry?
3) What is the significance of the existing intimate pictures and what is their impact on the judge’s ability to preside with dignity and respect in her courtroom?
4) Did the Manitoba Law Society and the legal establishment in that province close ranks and try to silence the complainant in this matter?
While attending the National Family Law Conference in Halifax recently, I participated in a lively debate over this matter and its impact on the judiciary and the judge herself. Interestingly, the debate disclosed a full range of views from the need for the judge to immediately resign, to the view that this matter is a one of little substance and should be quickly disposed of so that she can return to her duties. I lean to the view that resignation is called for.
Lawyers apply to be judges. They are not anointed or plucked from the ranks as many believe (although there is the odd exception). The process starts with a detailed application. Applicants must be scrupulously open and honest in completing the application form. Any deceit, even if minor in nature, is intolerable. The application form concludes with a “catch-all” question asking if there are any facts within the knowledge of the applicant that would or could somehow discredit the applicant or the judiciary as a whole; that information must be provided. If this judge is found to have knowledge of the alleged sexual harassment at the time of the application and did not disclosure it, for me, this is the basis for removal.
The more difficult issue involves the pictures and their continuing virtual existence. No one denies that they were taken by the judge’s husband and that they are very explicit (they are apparently still on the internet but I have no desire to view them). I subscribe to the prime minister Pierre Trudeau view that the government has no business in the bedrooms of the nation, but is it not a massive example of poor judgment to permit oneself to be photographed in a way that could one day be used to blackmail or otherwise seek favours when the person being photographed has aspirations to be a judge?
This is especially so in this era of Facebook and the internet. Good judgment is the hallmark of the judiciary. We pay them and respect them for their good judgment. Can the public feel confident when appearing before Justice Douglas that she in fact possesses the good judgment necessary?
There also exists the ancillary issue relating this judge’s ability to adjudicate on matters involving pornography and others that deal with sexual issues. I say this not with disrespect or with any righteousness but from the perspective of the public.
Finally I raise the issue, with little comment, as to the events that followed the disclosure of these matters. The inquiry presently underway should expand its mandate (if that is jurisdictionally possible) to consider the actions of the lawyers and the law society involved as these matters came to light. If not this inquiry (perhaps limited by jurisdiction) then another, to examine whether the complainant, his lawyer, the husband of the judge and his law firm all acted appropriately.
As this inquiry continues we should resist the urge to revel in the salaciousness and focus on the issues of more continuing concern.
