A panel of the Canadian Judicial Council reserved its decision Monday on whether Alexander Chapman's lawyer will be able to make submissions and question witnesses.
"Alex Chapman has a direct and tangential interest in this proceeding," lawyer Rocco Galati told the panel.
"A fair hearing cannot be conducted ... without having Mr. Chapman's counsel here."
Galati also asked for funding from the inquiry. He said Chapman has virtually no income since losing his job with an insurance company in 2010.
The panel is examining whether Justice Lori Douglas should be removed from the bench. Chapman says Douglas's husband showed him sexually explicit photos of her and asked him to have sex with her.
Douglas has said she did nothing wrong and her husband acted without her knowledge.
The independent lawyer who is leading the inquiry, Guy Pratte, argued against giving Chapman standing. Pratte is tasked with representing the public interest in the case and has a duty to bring forward all relevant information.
"There is no room for a complainant ... to complement the job of independent counsel," Pratte said. "He seeks to bring forward no new facts."
The judicial council panel rejected requests for standing from two other individuals Monday — a local blogger who said the inquiry needed oversight from a member of the public, and a woman who lost a child custody battle before Douglas in 2008.
Both individuals have no direct interest in the allegations against Douglas, the panel ruled.
The judicial council panel, which includes the chief justices of Alberta, Prince Edward Island and Newfoundland and Labrador, is investigating Douglas's behaviour before and after she was appointed to the bench in 2005.
The inquiry was launched after Chapman filed a complaint in 2010 that he had been the subject of a strange sexual plan seven years earlier. He said his divorce lawyer, Jack King, had supplied him nude photos of King's wife, Douglas, and had asked him to have sex with her.
Douglas was a lawyer at the time. She was later appointed a judge and rose to the position of associate chief justice of the Manitoba Court of Queen's bench, heading up the family court division.
King admitted in March of last year that he solicited Chapman to have sex with his wife, supplied the photos and arranged two meetings at a bar between himself, Chapman and Douglas.
But King has said he acted without his wife's knowledge and all parties have agreed that Chapman never had sex with Douglas.
Later in 2003, King paid Chapman $25,000 to settle a sexual harassment claim. Part of the deal was that Chapman return the photos and not discuss the matter openly. But Chapman went public in 2010, saying he could not keep silent any longer and the photos reappeared on the Internet.
Douglas is facing four allegations:
— that she sexually harassed Chapman.
— that she failed to disclose the issue when she was screened for a judicial appointment in 2005.
— that she didn't fully disclose the facts to the independent counsel leading the inquiry.
— that she has undermined confidence in the justice system and her ability to act as a judge.
Douglas has denied all the allegations. Through her lawyer, she has told the panel she is the victim of "unimaginable betrayal" by her husband and a "despicable" scheme by Chapman.
She has also answered suggestions that she wasn't upfront about the matter when she was appointed to the bench by saying the appointments committee — as well as Manitoba's chief justice — were aware of the photos.
The allegations against Douglas basically boil down to one question: Can a judge whose husband took explicit pictures of her and uploaded them without her knowledge to the Internet be penalized for the very existence of the photos?
According to one law professor, the answer should be no.
"Based on the information that I have, I think she's done nothing that should warrant her removal from the bench," said Karen Busby, a law professor at the University of Manitoba.
"It is troubling that a judge could be removed because she has been victimized by others or has participated in a common and lawful activity — even if that activity is disturbing to some."
Public inquiries into judges are rare.The judicial council has held them nine times across the country in 40 years. It has only once recommended that a judge be removed.
In 2009, the council recommended to the federal government that Paul Cosgrove be removed as a justice of the Ontario Superior Court due to incompetence and abuse of his powers.
Douglas is not being questioned about her activities in the courtroom. It is her private life, as well as her dealings with the appointments committee and the inquiry's independent counsel, that will be under the microscope.
The hearing is expected to continue off and on until the end of July.