Manitoba Justice Lori Douglas and her husband, Jack King, will testify at a Canadian Judicial Council inquiry into her conduct in connection with a sex controversy.
As well, the inquiry panel ruled on Tuesday that Alex Chapman will have limited standing at the inquiry.
That means Chapman, whose complaint launched the inquiry, will receive funding for a lawyer to question three people on the stand: Douglas, King, and Chapman's former lawyer, Ian Histed.
Both the independent counsel and lawyers for Douglas were opposed to Chapman getting any kind of standing.
The inquiry committee said in no way is its decision meant to undermine the role of independent counsel at the hearing.
No witch hunt
In his opening remarks on Tuesday, Guy Pratte, independent counsel for the Canadian Judicial Council's (CJC) inquiry, said the hearing will "not be a witch hunt or whitewash" and it will be "scrupulously fair."
He added that an inquiry into complaints regarding a judge's private life is unprecedented.
"We'll have to delve into some very private aspects of Lori Douglas's life," but the evidence warrants a hearing, he said.
Without it, there would always be the question of whether the facts of the complaints could impair her from continuing in her role as a judge, he added.
Chapman went public in 2010 with accusations of being sexually harassed by Douglas and King in 2003.
King, who was Chapman's divorce lawyer that year, has admitted to giving nude photos of Douglas to Chapman in an attempt to convince him to have sex with his wife.
The sexually explicit photos showed Douglas naked in various forms of bondage, with sex toys and performing oral sex. The photographs also appeared on a pornographic website where white women looked for black men as sex partners.
Removal from bench possible
The inquiry panel could rule that Douglas be removed from the bench, a rare move in Canada.
King has said that in his dealings with Chapman, he acted without the knowledge of his wife, who was also a lawyer at the time of the events outlined in Chapman's complaint.
Douglas was appointed a justice with the Manitoba Court of Queen's Bench in 2005, then promoted to associate chief justice of the court's family division in 2009.
The CJC alleges that Douglas, who was appointed to the bench a couple of years after the nude photos were posted online, did not disclose that information on her judicial application.
However, in a statement filed by her lawyers two weeks ago, Douglas names several people who were allegedly aware of the photos, including the chief justice of Manitoba's Court of Queen's Bench.
Douglas has denied any wrongdoing and said she should not be penalized for her husband's actions, which she called "acts of unimaginable betrayal, in pursuit of a mad and undisclosed fantasy."
Sheila Block, counsel for Douglas, said during her opening remarks on Tuesday that "a wife shouldn't be tarred with the brush of her husband's misdeeds."
"That's another patriarchal era when women were defined by their husbands," she said.
King took the photographs of Douglas during sex but she never viewed them. They were for his use only, Block said.
"Judges have sex both before and after their appointment to the bench," she said.
"Wearing sex gear, play acting, and performing oral sex is not impermissible sex."
Evidence at the inquiry will show that Douglas's conduct would have kept all such images private, said Block, who argued that Douglas was the victim of a "mentally unstable husband."
Douglas's constitutional rights would be violated if she is held accountable for King's actions, Block argued.
Changed word in diary?
The CJC also alleges Douglas changed an entry in her personal diary that described an encounter she had with Chapman "which she knew or ought to have known was relevant to the investigation."
In its notice of allegations to Douglas, the council states that Douglas "intentionally made incorrect representations" to the independent counsel about that changed entry.
The entry for May 16, 2003, described the meeting with Chapman. Douglas changed the adjective "nice" in describing the meeting to "boring."
At first she denied any recollection of changing the entry and told the independent counsel it didn't happen in the last two to three years.
Ten days later, she corrected her statement.
In the statement filed by her lawyers, Douglas said she "admits changing the word out of anger at Chapman's false allegation that had been made against her in the media."
However, "she had no intention of misleading anyone. She did not anticipate that the diary would be evidence in the inquiry process," it added.
Histed negotiated a confidentiality agreement in 2003, when Chapman complained to King's law firm about the propositions.
King paid Chapman $25,000 out of his own pocket and Chapman agreed to "delete all emails and photos ever sent by Jack King," not to seek legal action, and not to speak publicly about the case.But the CJC's independent counsel alleged on Tuesday that Douglas had loaned the $25,000 to King, who eventually paid her back.
King also resigned from the law firm and took a one-year medical leave from the profession.
The Manitoba Law Society also conducted an investigation into the allegations against King, and at a hearing in 2011 he was given a reprimand and ordered to pay approximately $13,000 in costs. But he avoided disbarment or suspension.
Chapman has admitted to breaking the confidentiality agreement he signed in 2003, but said he had to go public because he continues to be haunted by what happened.
Chapman was ordered last week to repay the money for breaching the confidentiality agreement.
The inquiry's opening remarks took less time than expected, so the hearing has been adjourned until July 16, when the first of 14 witnesses will be called to testify.