The secret lives of judges – Part II
6 Sep 2010
The background is set out in Part I.
Here, I argue that the nature of the judicial appointment process in Canada makes it necessary that Justice Douglas must resign in light of these developments.
Disclosure – or lack of it
In Canada, superior court justices are appointed by the Prime Minister on the advice of the Governor in Council. The Governor in Council means the Governor General and cabinet.
The Minister of Justice is responsible to make recommendations to cabinet. The Minister of Justice uses an Advisory Committee on Judicial Appointments in each province to evaluate potential candidates.
Persons interested in judicial appointment apply in writing by submitting an application to the Advisory Committee.
The application form asks a number of personal questions, including: “Is there anything in your past or present which could reflect negatively on yourself or the judiciary, and which should be disclosed?”
There is no evidence, at this point, as to how Lori Douglas answered that question.
The original CBC new report says that after Jack King’s retainer was complete, Alexander Chapman complained to the partners in Mr. King’s firm, that Jack King had shown him nude pictures of Ms. Douglas, and given him the password to an account on an internet site with more nude pictures of her. At the time, those partners included Ms. Douglas. It is difficult to imagine that she would not have known that the images had been published in this way.
Would it have been proper for her to answer “no”?
One could argue that it was a proper answer. Jack King, and the firm where he and his wife were partners, settled any claim Alexander Chapman might have had by paying him $25,000. The settlement agreement included a non-disclosure clause. Should Lori Douglas have anticipated that Mr. Chapman would breach the contract between Mr. Douglas and him?
That is an interesting question in itself.
Exactly what damages did Mr. Chapman suffer? The psychological trauma of seeing pictures of a woman in the nude? Of being told his lawyer wants him to have sex with the lawyer’s wife?
If he did indeed suffer some kind of psychological trauma around that time, how much of it was actually attributable to his divorce?
The reality is that any possible claim seems trivial. All the same, Mr. King allegedly paid out $25,000 to get rid of the problem.
This has all the markings of blackmail; and blackmailers, being engaged in an illegal act just by making their demands, can hardly be expected to abide by the letter of the law after their demands are met.
Let’s assume that an answer of “no” was proper.
As Alice Woolley points out both in her National Post Op-Ed piece, and in her Legal Ethics Forum blog post, many of the questions in the form appear to be aimed at avoiding the potential for blackmail and embarrassment. An answer in the negative would seem to place the Committee in a difficult position to consider that risk. We cannot know how it would have dealt with the fact that these circumstances were a part of Ms. Douglas’ past. As I argue in Part I, under the present societal mores and norms, this would not have been acceptable for a person applying for judicial office.
What if she answered “yes”?
Most commentators, including other lawyers and professors of law, have expressed significant doubt that she would have been recommended had the Committee been told that there were once nude pictures of Lori Douglas on the internet. We have no evidence as to how Committee dealt with that information.
Irwin Cotler, the Minister of Finance when Justice Douglas was appointed, has said that he did not know about the pictures. Obviously, then, neither the Prime Minister, nor the Governor in Council would have known.
Did the Committee not have an obligation to relay this information to the Minister, with some explanation, at least, as to why Lori Douglas was the best candidate for appointment notwithstanding the pictures and settlement?
The Advisory Committee performs a critically important function in the appointment of judges, and by extension, in safeguarding the integrity of the judicial system. Given that it was advising the Minister of Justice, it ought to have appreciated that it was not the ultimate decision-maker. Indeed, the ultimate decision-maker was not even the Minister of Justice, Prime Minister on the advice of cabinet. If there were unusual circumstances surrounding a particular candidate, the Minister ought to have been apprised, so that he could discuss any risks to the justice system as a whole with cabinet, including the Prime Minister.
There is no evidence that happened, and no guarantee that the best available candidate was appointed on that occasion.
Conclusion – with a modest proposal
The inescapable conclusion is that unless she steps down, there will always be a cloud over Justice Douglas because of this scandal. It isn’t fair to her, or the litigants who appear before her.
In my opinion, her candidacy ought to be reconsidered in light of these recent developments.
The Governor in Council should evaluate Lori Douglas’ application alongside the applications of any others that the Committee is prepared to recommend.
If the Governor in Council is still prepared to recommend her appointment, then it ought to make its reasons public.
As Professor Woolley has stated, the public is entitled to the best judges that the legal profession has to offer. This proposal would guarantee that the public receives that, within the parameters of our current system of judicial appointments, while ensuring fairness for Justice Douglas in these particular circumstances.