In a preliminary motion to be heard in Winnipeg this week, Associate Chief Justice Lori Douglas will assert she played no culpable role in the scandal that could cost her her job.
Holding a formal disciplinary hearing would send the message that Douglas is morally to blame for having had sex with her husband, and for her belief that his misdeeds could not reflect badly on her or the judiciary, her lawyers argue in written submissions.
Instead, they argue, she is a victim who has suffered serious and irreparable harm at the hands of others, and a hearing would revictimize her.
"The photos have been made publicly available without (Douglas's) knowledge or consent and in violation of her privacy rights," Douglas argues in her notice of motion.
"Such conduct by others is not capable of supporting a recommendation of removal (from the bench)."
An inquiry panel struck by the Canadian Judicial Council, the body that considers complaints against the conduct of federally appointed judges, is slated to hear three allegations against Douglas next month:
— The intimate photographs could be seen as "inherently contrary to the image and concept of integrity" of the judiciary and undermine public confidence in the justice system;
— Douglas failed to disclose information about the pictures when she applied to become a judge;
— She altered her personal diary when she discovered the council investigation into her conduct.
The panel refused her request to hear the preliminary motion outside Winnipeg starting Monday.
If the committee insists on a formal hearing, Douglas is asking the panel to declare the photographs inadmissible as evidence and return them to her.
"The suggestion that the photos must be viewed by the inquiry committee in order to render a recommendation to the council is premised on harmful, sexist stereotypes about women's sexuality," her motion states.
Long before she became a judge in May 2005, Douglas's husband Jack King gave three of the scores of intimate photographs he had taken of his wife — some of which he also posted on a website — to a client, Alexander Chapman.
King, who later described his behaviour as "bizarre, ridiculous, stupid, self-indulgent, grotesque," also tried to lure Chapman into having sex with an unwitting Douglas.
In response, Chapman alleged sexual harassment against King. He threatened to go public and demanded $100,000 for return of the images and resolution of his complaint, document show.
In July 2003, Chapman accepted $25,000.
"The fundamental premise of the resolution of this matter was that all such materials that had seen the light of day, that Chapman received or been directed to, would be returned and destroyed," Bill Gange, who represented King, states in an affidavit filed with the committee.
In fact, Chapman held on to copies of the photographs and sent them to the media in 2010, ostensibly because he had an unrelated beef with the justice system.
King, who died in spring, successfully sued Chapman for breaching the 2003 agreement. When King attempted to pursue costs, Chapman threatened to post the photographs on a foreign website. He then did so, documents show.
Other documents show Manitoba's chief justice and members of the panel who recommended she be appointed to the bench knew of the situation and believed it had been effectively dealt with, Douglas argues.
Suzanne Cote, independent counsel to the inquiry panel, says the motion should more properly be considered as part of the hearing on the merits of the allegations against the judge. She also wants to be able to cross-examine Gange and experts who provided materials for the motion.
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