10/28/2014 11:03 EDT | Updated 12/28/2014 05:59 EST

Disciplinary panel doesn't need to see nude pictures of Manitoba judge: lawyer

WINNIPEG - A lawyer for a senior Manitoba justice who faces removal from the bench because of nude photographs posted on the Internet says a disciplinary panel of judges should not view the intimate photos because it would violate the privacy of an innocent victim.

Sheila Block, who represents Associate Chief Justice Lori Douglas, told the panel reviewing her conduct that the racy photos should be returned to Douglas.

"Any viewing is an assault on that victim," Block said at the hearing in Winnipeg on Tuesday. "Would you want your wife, your daughter, your niece to be subjected to that? Of course not. It's inhumane.

"This is soul-destroying stuff for women."

The photos were not released with Douglas's consent and are not vital to the tribunal's work, Block argued.

"Can a photo of a woman's intimate, lawful, consensual conduct ... disclosed without her consent ... lessen public confidence in the judiciary?" she asked. "The answer has to be no."

The photos were taken by Douglas's late husband Jack King, who posted them on a website in 2003 and showed them to a client to try to entice him to have sex with his wife. Both King and Douglas were lawyers at the time. King admitted sharing the pictures without Douglas's knowledge.

Alexander Chapman, King's client, alleged he was sexually harassed by King's actions. He accepted $25,000 to drop the complaint and destroy the photos. 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" and undermine the justice system. The panel is also looking at whether Douglas failed to disclose their existence before she was appointed a judge in 2005 and whether she altered her personal diary when she discovered the council investigation into her conduct.

Block is arguing the case should be dismissed immediately because going ahead with another hearing would inflict further trauma on an innocent victim. She has compared Douglas's case to a recent celebrity-hacking scandal that saw intimate photos of actors Jennifer Lawrence and Scarlett Johansson posted online.

Independent counsel Suzanne Cote argued the case should be investigate "on its merits." There is enough evidence to warrant an evidentiary hearing, she said. It would undermine the panel's credibility if they didn't examine the photos that prompted the disciplinary hearing in the first place, Cote said.

"You are obliged to see them," she said. "How can you assess the evidence which will be presented ... if you don't see the pictures?"

Judges are held to a higher standard than their fellow citizens, Cote said. That may mean that perfectly worthy candidates are rejected because of an element in their past, she said.

The committee members who vetted Douglas's application "almost fell from their chairs" when the nude photos were made public in 2010, Cote said.

"The test is not about whether the judge can decide cases independently or impartially, but whether the public will perceive her as being able to do so," she told the panel. "Not only women but men must satisfy the most onerous disclosure obligations. There is no other way to preserve the judicial system in the eyes of the public."

A previous hearing in the matter bogged down in technical arguments and heard just a few days of testimony. It was ultimately derailed by allegations that the proceeding was biased against Douglas. The panel resigned en masse and a new set of judges was appointed to start all over.

This preliminary hearing by the new panel is scheduled to wrap up Wednesday.

Douglas has been on a paid leave of absence since 2010.