The true scandal is the secretiveness and cronyism of selecting judges
It's funny, but the letters recently released by the Canadian Judicial Council in the Lori Douglas matter reveal the real rot in the system - and it has little to do with the so-called "naked judge" scandal.
The rot is in the arrogance of lawyers and judges who perpetrate the fiction that the Canadian system of picking federal judges (which means not just those on the Supreme Court, but also the 1,115 superior and appeal court judges in every province and territory) is pristine and brilliant.
Rather, as the appointments of Manitoba judges Douglas (2005) and the more recent one of former MP and justice minister Vic Toews (2014) illustrate, the system is inherently political, secretive and riven with cronyism.
That it may sometimes also result in a brilliant appointment - and both of those I mention may qualify as such some day - is but a happy accident.
Associate Chief Justice Douglas, of course, is the judge whose husband, Jack King, in mid-mental breakdown posted bedroom pictures of her on a hard-core porn website and then tried to solicit a client to have sex with her - all without her consent or knowledge, as he has long admitted, she has always insisted and the evidence tends to support.
That client, one Alex Chapman, first attempted in 2003 to blackmail King (with some success, in that King paid him $25,000 to go away), and then, his natural conspiratorial bent encouraged by his own lawyer, seven years later launched a complaint against Douglas, who by then was a rising star on the Manitoba bench.
It is evidence in that complaint that an inquiry committee of the Canadian Judicial Council began hearing in the summer of 2012.
The committee's fairness to the judge quickly became a huge issue and the whole thing careened off the rails, with independent counsel Guy Pratte resigning (and with the CJC's release of its correspondence with Pratte, with good reason) that fall, and the members of the inquiry committee following suit more than a year later.
(The CJC had argued the letters were sacred and covered by solicitor-client privilege, bizarre since Pratte's role as "independent counsel" was to be independent, and that it was above judicial scrutiny. A federal court judge found there was no solicitor-client relationship and ordered the release of the letters. The CJC released the letters, but in the context of an announcement that it was appealing the decision - in other words, the CJC still believes it was right. Oh yes, as an added fillip, the CJC also wants the new inquiry committee to get cracking and says, despite its appeal, the hearing should resume ASAP.)
The most critical allegation against Douglas is that she failed to properly disclose this black cloud when she applied for the bench. She answered no to a question on the form that asked if there was anything in the past or present that could reflect negatively on her.
But the fact is, as no less than former Manitoba Court of Appeal judge Martin Freedman testified at the hearings, and he was the chair of Manitoba's Judicial Advisory Committee or JAC at the time, the committee nonetheless had a discussion of Douglas's hideous situation.
That discussion included the fact that she was an excellent lawyer; that there had been this incident involving photographs of "a sexual nature"; that she herself "was an innocent … victim in this situation" and that though Freedman and the others naively believed the offending pictures had been permanently removed from the Internet, the committee decided to "flag" the matter to the justice minister's attention, just in case.
Now, not all those on the committee at the time remembered the discussion as having been as explicit as Freedman did, but he was the chair, and he did have at least a procedural note to rely upon.
And at bottom, the committee recommended Douglas be appointed; though, in a lovely bit of punch-pulling, they didn't "highly recommend" her, as they had before.
As for Toews, whose appointment to the bench was widely rumoured as likely even back in 2012, he too first would have been OK'd by the Manitoba Judicial Advisory Committee.
The members of this JAC are different from those who chose Lori Douglas, but as with their predecessors, they are either representatives of the Canadian Bar Association, the Law Society of Manitoba or the judiciary (one member each), more recently the law enforcement community (one member), with the remainder well-connected with the political establishment of the day (one member appointed by the provincial justice minister, three by the federal justice minister).
In 2005, when Douglas got the thumbs-up, the JAC members were well-connected to the federal Liberals; in 2014, when Toews was appointed, they're connected to the federal Tories.
In her case, at least two members (the chair, Freedman, and a member whose memory of the discussion accords with his) knew in some detail about the scandal in her - or rather, her husband's - background, and all of them knew the bare bones of it, and yet they gave her the nod anyway.
In Toews' case, they knew that the appointment broke with the convention of waiting two years after a person leaves government, and did it anyway, in eight months.
And the entire process - from the appointment of the JAC members to how candidates apply to how they are OK'd or not - is opaque and mysterious.
(They do things much better for the provincial court in Ontario, where vacancies are advertised and candidates actually interviewed.)
In other words, the world of lawyers and judges welcomed Lori Douglas into their club knowing full well the baggage she carried. Once that baggage became public, however, it was off with her head; they collectively have prosecuted and persecuted her.