Sheila Block, who represents Associate Chief Justice Lori Douglas, argued the case should be thrown out because it punishes the victim.
Block said it doesn't make sense to subject Douglas to another lengthy disciplinary tribunal which equates to "state-sponsored victim-blaming."
Block told a panel of judges that they shouldn't put Douglas through more trauma, because she was a victim twice over: of her husband, who died of cancer in the spring, and of a man bent on extortion and revenge.
"You are not responsible for pushing this boulder down the hill but you are in the position to do the right thing," she told the judges.
"Our system of justice does not punish the victim. It does not rob the victim of their dignity and privacy. It does not treat the victim as damaged goods."
Suzanne Cote, independent counsel to the inquiry panel, argued the case should be heard and decided on its merits. If the panel should consider dismissing the case, she should be allowed to cross-examine witnesses and present evidence, Cote said.
Block told the panel Canada is "coming out of the Dark Ages" when it comes to distributing explicit photos without consent. What happened to Douglas is akin to severe cyberbulling or "cyber sexual assault," the lawyer suggested. She compared it to a recent celebrity-hacking scandal that saw intimate photos of actors Jennifer Lawrence and Scarlett Johansson posted online.
"Distributing nude photos without consent isn't a scandal; it's a sex crime," Block said. "We need to ensure the most senior judges in the land line up to protect the victims, not line up with the perpetrators (who) deal in humiliation, punishment, revenge and misogyny.
"This isn't about an individual woman. It's about our society, what we stand for, and how we protect those in need of protection."
Douglas's husband, Jack King, posted intimate photos of his wife online and showed them to a client, Alexander Chapman, in an attempt to entice him to have sex with her.
King and Douglas were both lawyers at the time.
Chapman later alleged the behaviour was sexual harassment and was paid $25,000 to destroy the photos and drop the complaint. But he held on to copies of the pictures and made them public in 2010.
A disciplinary panel struck by the Canadian Judicial Council is examining whether the photos are "inherently contrary to the image and concept of integrity" of the judiciary and undermine public confidence in the justice system. The panel is also looking into whether Douglas disclosed the existence of the photos before she was appointed to the bench in 2005 and whether she altered her personal diary when she discovered the council investigation into her conduct.
Douglas and King always said she had no part in King's actions, which he later described as "bizarre, ridiculous, stupid, self-indulgent, grotesque."
Douglas had no obligation to disclose her victimization when she applied to be a judge, Block said. Abuse victims aren't expected to disclose their background because it's irrelevant to the appointment, Block said.
Parliament is on the verge of passing a law which makes it criminal to distribute or publish intimate photos of someone without his or her consent, Block noted. Continuing to subject Douglas to the humiliation of a disciplinary hearing runs contrary to where legislation law is headed and will not ensure public confidence in the justice system, she argued.
"It is doing precisely the opposite," she said. "You can and must stop this in the interests of justice."
A previous hearing in the matter bogged down in technical arguments and heard just a few days of testimony. But it was ultimately derailed by allegations that the proceeding was biased toward Douglas. The panel resigned en masse and a new set of judges was appointed to start all over.
Neither Douglas nor Chapman attended the hearing Monday, which is scheduled to last several days.
Douglas has been on a paid leave of absence since 2010.Suggest a correction