A panel of judges appointed by the Canadian Judicial Council has dismissed a motion from the lawyer for Associate Chief Justice Lori Douglas to throw the case out. Sheila Block compared Douglas to celebrities such as Jennifer Lawrence or Scarlett Johansson, whose nude photos were hacked, or to a rape victim who is subsequently shunned.
Block argued the panel shouldn't put Douglas through more trauma because she was a victim of cyber sexual assault.
The panel rejected Block's argument, along with one that suggested they shouldn't see the racy photos because that would violate Douglas's privacy.
The panel is expected to post written reasons for its decision within days.
"We will deal with the pictures, the photographs, at the beginning of the hearing on Nov. 24," chair Francois Rolland told a hearing into the matter last week, according to transcripts posted on the council's website.
The panel is reserving its decision on whether to dismiss the allegation that Douglas altered her personal diary when she discovered the council investigation into her conduct, Rolland said.
"We're going to do our best to render our decision as quickly as possible," he said. "It's going to be done very, very soon."
The disciplinary panel 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.
Douglas's late husband, lawyer Jack King, posted the intimate photos of his wife online over a decade ago and showed them to a client, Alexander Chapman, to try to entice him to have sex with her. Chapman later alleged the behaviour was sexual harassment.
He was paid $25,000 to destroy the photos and drop the complaint. But he held on to copies and made them public in 2010.
Douglas and King always said she had no part in King's actions, which he later described as "bizarre, ridiculous, stupid, self-indulgent, grotesque." King died of cancer last spring and Douglas has been on paid leave since 2010.
A previous panel that was investigating Douglas only heard a few days of testimony and got bogged down in technical arguments. Its members resigned en masse following allegations that the proceeding was biased against Douglas and three new people were appointed.
Block had urged the new panel not to go ahead with another evidentiary hearing, which she said runs counter to a bill on the verge of becoming law. The bill before Parliament would make it criminal to distribute or publish intimate photos of someone without his or her consent.
Photos taken of marital sex don't throw the justice system into disrepute, but continuing to prosecute the woman who never consented to making them public does, Block suggested.
Independent counsel Suzanne Cote argued the case should be investigated "on its merits." She said there is plenty of evidence to warrant a hearing and judges are held to a higher standard than their fellow citizens.
Perfectly worthy candidates may be rejected because of an element in their past, she said. Cote also disputed that committee members who vetted Douglas's application knew about the photos, saying they "almost fell from their chairs" when the nude photos were made public.
The panel is expected to reconvene in Winnipeg at the end of November.
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