The issue is threatening to derail the inquiry into Lori Douglas, whose husband uploaded sexually explicit photos of her to the Internet in 2003, when the couple were family law lawyers at a Winnipeg firm.
The inquiry by the Canadian Judicial Council is a unique proceeding — part public inquiry, part disciplinary hearing by a governing body. It is being conducted by a five-member committee that includes the chief justices of Alberta, Prince Edward Island and Newfoundland and Labrador, as well as two private lawyers.
Douglas's lawyer, Sheila Block, is upset that the panel has its own lawyer, George Macintosh, participating in the proceedings and aggressively cross-examining witnesses. She is asking the Federal Court of Canada to quash the inquiry, saying it has shown bias against her client. In court documents filed Monday, Block said Macintosh has engaged in "aggressive and argumentative questions, sexist and insulting references ... and attacks on (Douglas's) character and credibility".
The independent lawyer leading the inquiry, Guy Pratte, has also objected to Macintosh's questioning, saying the inquiry committee cannot act as both a referee of the proceedings and an active participant.
The committee, however, says it has no option but to question witnesses.
"An inquiry committee retains a responsibility to search for the truth. It is performing a vital fact-finding mission," the committee members wrote in a document released Tuesday. The document is a detailed version of an oral decision the committee made last month, when it rejected Block's request to halt the inquiry.
"If that requires an inquiry committee, directly or through its counsel, to engage in strong questioning of a witness, then this necessity must prevail over any perception of the moment."
The committee's lawyer grilled Douglas's husband, Jack King, last month about his claim that Douglas never knew he had kept nude photos of her and uploaded them to the Internet. With rapid-fire questions, MacIntosh suggested it is hard to believe that Douglas never even asked what King was doing with more than 100 explicit photos he had taken of her over several years.
There is no word yet on when the Federal Court might hear Block's bid to halt the inquiry, which is a rare procedure in Canadian legal history. The Canadian Judicial Council has only held inquiries into judges nine times in 40 years. It has only once recommended that a judge be removed.
In 2009, the council recommended to the federal government that Paul Cosgrove be removed as a justice of the Ontario Superior Court due to incompetence and abuse of his powers. Cosgrove resigned before the federal government could make its decision.
The current inquiry is examining whether Douglas, an associate chief justice in the Manitoba Court of Queen's Bench, should lose her job because of a controversy that began when her husband, who is also a lawyer, harassed a client.
In 2003, King uploaded sexually explicit photos of Douglas to a website dedicated to interracial sex and said his wife was looking for a black partner. He also emailed photos to a client named Alexander Chapman, who is black, and asked him to have sex with Douglas.
Chapman complained to King's law firm and King settled the matter within weeks by paying Chapman $25,000 to return all the photos and to never discuss the matter. Chapman broke that deal in 2010 and complained to the judicial council, insisting Douglas was part of the sexual harassment.
The inquiry is also examining whether Douglas failed to disclose the matter when she was appointed a judge in 2005 and whether the very existence of the photos disqualifies her from continuing as a judge.
Douglas has denied all the allegations. She and King have said King acted alone without her knowledge.