WINNIPEG - Removing a Manitoba judge from the bench for appearing in sexually explicit photos would be akin to penalizing a rape victim whose assault was videotaped and uploaded to the Internet, a lawyer argued Tuesday.
"Would the system of justice ever say that (a rape victim) had to be removed from the bench?" Sheila Block asked a panel of the Canadian Judicial Council. "It is the antithesis of what the administration of justice stands for."
Block's client, Lori Douglas, is being investigated by the council over accusations she sexually harassed Alexander Chapman in 2003. Chapman was given naked photos of Douglas by her husband Jack King. At the time, King and Douglas were both lawyers and King had represented Chapman in a divorce.
One of the four allegations being heard by the council is whether the very existence of the photos — some of which show Douglas in bondage gear and performing sex acts — damage public confidence in her or the justice system.
King has admitted he uploaded and distributed the photos without his wife's knowledge. Block called it an act of unforgivable betrayal of the couple's most intimate moments.
To penalize Douglas for that would be patriarchal, Block said during her opening submissions Tuesday.
"A wife is not responsible for, is not to be tarred with the brush of, her husband's misdeeds," she said.
The inquiry was launched after Chapman filed a complaint in 2010 saying that he had been the subject of a strange sexual plan seven years earlier. He said King had supplied him the photos of Douglas and had asked him to have sex with her.
Douglas was later appointed a judge and rose to the position of associate chief justice of the Manitoba Court of Queen's bench, heading 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. 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 he 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 some facts to the inquiry and changed a 2003 entry in her personal diary in 2010.
— that the photos have undermined confidence in the justice system and her ability to act as a judge.
Through her lawyer, Douglas has denied all the allegations.
Douglas never talked about sex with Chapman or touched him, Block said, and the committee that reviewed her judicial appointment knew about the photos.
Chapman's lawyer did not get to make opening submissions.
Rocco Galati was granted limited intervener status Tuesday. He will be allowed to question three witnesses in the coming weeks — Douglas, King and Ian Histed, a lawyer who represented Chapman in 2003 when he reached the $25,000 settlement with King.
The independent counsel leading the inquiry, Guy Pratte, said there will be more than a dozen witnesses in the coming weeks, including Douglas, King and other members of the judiciary. Some evidence will show that in 2003 Douglas had described a meeting with her husband and Chapman as "nice" in her diary, but in 2010 she wrote the word "boring" over nice, Pratte said.
He also told the hearing evidence will show that Douglas, King and Chapman were together at a bar twice, and on one occasion, Chapman said, Douglas touched him on the arm and leg
"This will come down to a form of credibility contest," Pratte said.
Block said Douglas never "laid a finger" on Chapman, and the meetings at the bar were arranged by her husband without her knowledge.
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. Cosgrove resigned before the federal government could make its decision.
The inquiry has already taken a toll on Douglas's mental health, Block indicated Tuesday. The judge "hit a low point" in February of this year and has "intensified her medical treatment," Block said.
The hearing is to resume July 16. Chapman is scheduled to be the first witness.