POLITICS

'Nude judge' misconduct case to start anew with sex photos off-limits for now

11/23/2014 01:49 EST | Updated 01/23/2015 05:59 EST
TORONTO - A second hearing into whether a senior Manitoba judge should be kicked off the bench is finally set to start in Winnipeg on Monday but sex photos central to the allegations against her will be off-limits — at least for the time being.

The three-person panel of the Canadian Judicial Council had wanted to view the images of Associate Chief Justice Lori Douglas but her lawyers won an 11th-hour stay of that decision on Friday.

In ordering the stay, Federal Court Judge Richard Mosley stressed it would be up to another hearing to decide whether the images should be permanently sealed. That judicial review is slated to happen Dec. 9 in Ottawa.

"(Douglas) points to the emerging social consensus in Canada that intimate images should not be disclosed or disseminated against the will of the persons they depict, unless it is absolutely necessary," Mosley said in written reasons.

"If the stay is refused and (Douglas) subsequently succeeds on the merits of her application for judicial review, the court will have condoned unnecessary disclosure of such images."

Douglas faces three allegations:

— The 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 in 2004;

— She altered her personal diary after learning the council was probing her conduct.

The committee has set aside 10 days for the Winnipeg hearing. It expects testimony from 23 witnesses. It's not clear how its inability to view the images might affect the proceedings.

This is the second panel to hear the case.

The first hearings collapsed after a few weeks in 2012 amid accusations levelled by Douglas that the five-judge committee was biased against her. The committee's independent counsel resigned, followed by the resignation of the panel itself a year ago.

The issue of bias became part of a legal fight currently headed to appeal after Federal Court ruled there was none.

The Canadian Judicial Council — essentially comprising the country's chief and associate chief Superior Court justices — has drawn scathing criticism for its handling of the case, especially its contention that it does not answer to the courts.

That issue is also headed to appeal after Federal Court firmly rejected that notion.

In March, the council appointed a new panel, comprising two male judges and a female lawyer. Also appointed was a female lawyer to act as independent counsel to the panel.

The complaint against Douglas arose after her now-late husband, Jack King, took photos of her and posted them on the Internet without her knowledge or permission in 2003.

King would later describe his behaviour as "bizarre, ridiculous, stupid, self-indulgent, grotesque."

Years later, King's client Alexander Chapman again posted the images on the Internet in violation of an agreement to return or destroy them.

The current committee dropped an allegation that Douglas had sexually harassed Chapman.

Douglas's lawyers have argued passionately the proceedings have only served to revictimize a woman already victimized by the non-consensual distribution of the intimate photographs, an act the federal government is seeking to criminalize.

"This was classic revenge porn," lawyer Sheila Block told Mosley in Toronto last week. "Suppose the judge was raped and somebody put it on YouTube?"

The judicial council could recommend Douglas's removal from the bench but only Parliament can fire her.