Understanding Judges and Lawyers’ Ethics in Canada: The Lori Douglas sex case and the pictures on the Internet, witch hunt or due course of justice?

Next week, the Canadian Judicial Council will hold its hearing into whether Manitoba Associate Chief Justice Lori Douglas has been “incapacitated or disabled from the due execution of the office of judge.” The hearing into Justice Douglas’s conduct arises from allegations about her behaviour prior to her judicial appointment, about the circumstances of her appointment and about her conduct during the Canadian Judicial Council’s investigation.
Specifically, it is alleged that she participated in wrongdoing relative to a client of her husband and of her own law firm, Alex Chapman, and that she failed to provide proper disclosure on her application for judicial appointment. It is also alleged that pornographic photos of her on the Internet are contrary to the image and integrity of the judiciary and could undermine the justice system, and that she interfered with the investigation by altering evidence (her diary) and intentionally providing incorrect information about the alteration to the Judicial Council’s investigator.
Recent in the National Post, Christie Blatchford described the Douglas proceeding as a “witch hunt.” That term suggests, I think, two things: first, that the allegations being made cannot be fairly proven, and, second, that even if proven the allegations do not show any wrongdoing. With full acknowledgement of Ms. Blatchford’s noted passion for justice and fairness, the Douglas inquiry is far from a witch-hunt in either respect: The information available so far, and the procedural safeguards offered by the Canadian Judicial Council, suggests both that the allegations may be proven, and proven fairly.
The statement filed by Douglas’s lawyer strongly denies the allegation that she did anything wrong prior to her appointment. In particular, it denies that she knew that her husband was soliciting Chapman to have sex with her, or that she knew that her husband had posted pornographic pictures of her to the Internet. It claims that Douglas was a dupe of her husband and, as well, of Chapman’s greed. None of these statements were made under oath or tested by cross-examination, however, and some of her statements support Chapman’s contradictory account, namely, her acknowledgement that she did meet with him on two occasions (albeit, she says, unwittingly). Douglas may well be found to have been an innocent dupe, but it is wrong to suggest that the allegation that she was otherwise is incapable of fair proof.
Further, Douglas’s response to the Judicial Council concedes that she did alter her diary, that she did mislead the investigator and that she did respond “no” to the question “Is there anything in your past or present which could reflect negatively on yourself or the judiciary, and which should be disclosed?” on her application for judicial appointment. The response provides justifications and explanations for each of those actions — that her alteration was unrelated to the investigation and not intended to mislead, that she spoke to the investigator in circumstances of stress, and that she was under no obligation to disclose the information in her application form. These explanations and justifications may be accepted by the Judicial Council, but Douglas’s acknowledgements certainly suggest both a basis for proceeding and the possibility that a fair process may reasonably make determinations against her.
And what if any or all of the allegations against Douglas are found by the Council to have a sound basis? Douglas’s lawyers make some well-reasoned arguments against the relevance of the existence of the photographs on the Internet, or of wrongdoing by Douglas’s husband, to Douglas’s fitness for office. However, they would properly face a difficult task in showing her fitness for office if the other allegations are substantiated.
Despite the digs at Alex Chapman by Douglas’s lawyers and Ms. Blatchford, the fact remains that he was a victim of seriously unethical conduct by his lawyer, and dealt with as such by King’s own law firm and more recently by the Law Society of Manitoba. If Douglas had any part in that wrongdoing, her fitness is in doubt.
As serious is the matter of the application for judicial appointment. The form requires that the applicant “attest to the veracity of the information provided.” If disclosure was required, Douglas faces a significant challenge to her fitness. Every lawyer knows the essential importance of attesting accurately. That the information may be otherwise known does not in any way excuse such a serious breach of a fundamental moral and ethical obligation. If Douglas altered evidence by changing her diary or if she mislead the investigator, her fitness for office is again in question. No lawyer or judge may properly engage in obstruction of legal proceedings.
When writing about this case in the Post nearly two years ago, I noted the lack of transparency in the judicial appointments process, and the importance of that process unfolding with the utmost propriety. The Canadian Judicial Council is to be commended for seriously and thoroughly investigating plausible allegations that it did not. That is not a witch-hunt; the Council’s members are simply doing their job.

Alice Woolley is professor of law and director of admissions, Faculty of Law, University of Calgary. She is the author of Understanding Lawyers’ Ethics in Canada (LexisNexis Canada, 2011) and co-author and co-editor of Lawyers’ Ethics and Professional Regulation, 2nd ed. (LexisNexis Canada, 2012).