The Canadian Judicial Council Inquiry Committee regarding the Honourable Lori Douglas is now over. The embattled Manitoba judge, whose late husband allegedly posted nude photos of her online and encouraged his former client to sleep with her, decided to settle for early retirement after the committee’s November 4, 2014, Ruling on Preliminary Motions, in which the tribunal insisted on viewing the nude photographs of her. Douglas did obtain a temporary stay of the ruling from the Federal Court, but this step effectively bought her time to bring a halt to the proceedings.
Despite the stay and the settlement of the complaint, the CJC’s ruling has damaged the independence of the Canadian judiciary at a time when our lawmakers seek to protect fellow citizens from cyber-stalking and other offences based on privacy breaches. If you thought a committee of august Canadian jurists offered a pair of safe hands to uphold the institution of our courts, this is how the committee dropped the ball:
- it misconstrued the passive language of clause 65(2)(d) of the Judges Act and made an offence out of Douglas’ betrayal by her late husband,
- its mistake was informed by an objectification of Douglas in the images, which images became more important than any alleged role she had in their dissemination on the Internet,
- it demonstrated poor command of the law of evidence, and
- in so doing, it exposed the judiciary to the real threat to its institutional integrity: blackmail.
Turning the victim into the offender by misconstruing the passive voice
In making this ruling, the committee explained:
The issue is not, as argued by Counsel for ACJ Douglas, about an inquiry into what forms of sexual expression are permissible or not, but rather about whether once disclosed publicly, such expression may or may not have an impact on the disclosure obligations of a candidate for judicial appointment or on a judge’s ability to sit as a judge.
The two allegations against Justice Douglas to which the photos were held to be relevant and admissible, were:
Whether Douglas ought to have disclosed the existence of the photographs at the time of applying to be a judge, because they “could reflect negatively on yourself or the judiciary, and which should be disclosed.” Candidate Douglas had answered “No” on the application questionnaire.
Whether the photos could be seen as inherently contrary to the image and concept of integrity of the judiciary, such that the confidence of individuals appearing before the judge, or of the public in its justice system, could be undermined.
These counts were cited under s. 65(2) of the Judges Act, and the committee’s jurisdiction was to decide whether Douglas has become incapacitated or disabled from the due execution of the judicial office by reason of clause (d) of that provision, by “having been placed, by … her conduct or otherwise, in a position incompatible with the due execution of that office.”
The subordinate phrase, or otherwise, is problematic especially in conjunction with the principal clause, having been placed, expressed in the passive voice. Since it was of public record that Douglas’ husband had published the photos to the adult site, the underlying subject matter of both allegations involved Douglas as the victim of a spousal betrayal: i.e., the two counts were about a thing that had been done to her.
Any law student, having passed the examinations in the Constitutional Law of Canada, could tell you that a penal sanction against a citizen for something that has been done to her, as opposed to the commission of an act, must be read in a way that does not breach the guarantee of legal rights pursuant to s. 7 of our Charter of Rights and Freedoms. Without specifying what “or otherwise” means, those words must be read to be her acts or omissions, analogous to her conduct. Blaming a victim of an offence and making him or her an offender is unconstitutional in Canada, and offends justice at even a visceral level. The words “or otherwise” can only expand on conduct, either though act or omission, but cannot be construed as encompassing a situation where others have placed the judge in the position of embarrassment, beyond her control. Thus, to start with, the complaint against Douglas was already capable of being framed in terms of the manner of publication. What the images depicted, beyond the fact that they showed Douglas unclothed, should not have been in issue. There was no need to view the images.
The Wrong Principles of Evidence
From a strictly legal application of the law of evidence, the decision to admit and view the photographs was not defensible, and resembled the rough justice employed in minor rulings during the course of a trial. Lawyers complain that judges frequently ignore the rules of evidence and leave the question to “weight,” in order to avoid appellate scrutiny. The rationale is that an exclusionary ruling is more readily appealed and may precipitate a new hearing, than a decision to admit evidence and apply any lack of probative value to the weighing of evidence. It is a bending of the law of evidence driven by administrative convenience, not by legal process or truth-seeking. This type of ruling, often defensible in minor matters, had no place in a matter where the accused was battling to save her professional existence against charges of dubious validity and the notoriety brought by the images themselves. It was not about a piece of hearsay in a business record.
The ordinary rules of evidence concerning the admissibility of private information, known as the Wigmore criteria, would have required a balancing of the probative value of the evidence against any privacy interests the law should protect. Wigmore’s four criteria, as stated in R. v. National Post, have been applied to private information in a host of circumstances, from doctor’s notes to reporters’ sources. It is, as restated here, a general theory of privacy in the Law of Evidence:
- the information must originate in a private setting,
- the privacy must be essential to the relationship in which the information arises,
- the relationship must be one which should be “sedulously fostered” in the public good, and
- the public interest in keeping the secret outweighs the public interest in the court’s truth-finding role.
The first two criteria may seem oddly apt, odd only because legal analysis imports a measure of Puritanism symbolized by the black robes and polite language used in court. Assuming that Douglas would not have consented to being photographed in the nude if she knew the photographs would be widely published, the first two criteria are easily met.
The third criteria may also seem odd to the legally trained, because the concept of the “sedulously fostered” relationship is usually reserved for relations such as doctor-patient, journalist-source, and the like. Does it apply to the relationship between the nude model and the photographer? Whatever middle Canada may consider about the value of what Douglas and her late husband got up to in private, the zone of personal privacy is a relationship between the citizen and herself. If we have come to recognize such personal privacy to the extent of excluding incriminating evidence obtained unlawfully during a police sting operation, the answer is clearly yes: one’s relationship with oneself away from public surveillance is worthy of “sedulous fostering.”
The fourth criteria, which engages the balancing exercise, is the easiest one to fulfil in this instance. What would the images prove, that was not already admitted? If the images are superfluous because they only add verification of admitted facts, the interest in maintaining the secret image obviously outweighs the judicial task of fact-finding.
The committee did not engage in the full Wigmore analysis. Instead, it analogized two principles of evidence completely unrelated to Douglas’ application to exclude the images from the trial. First, it adopted the rationale of the prior committee, which relied on R. v. Wildman, a case involving the admissibility of photographs based on the necessity to avoid graphic image having inflammatory effect on a jury – i.e. an irrelevant legal test that just happened to deal with photographs. Second, the committee relied on Imperial Oil v. Jacques, a case dealing with disclosure in civil proceedings – also irrelevant because the Douglas application for return and destruction of the images already in the possession of the tribunal or its counsel.
The legal principles regarding the admissibility of photographs in a jury trial do not invoke the nexus between privacy and fact-finding. The case law pertaining to the scope of civil discovery are irrelevant if the adverse party already possesses the evidence, and does not engage the rules of admissibility at trial. Had this been a law school Evidence examination, members of the committee should have received a failing grade. The committee, in failing to grasp the issue and principles, bypassed the four-part Wigmore analysis and thought that placing limits on public access could address Douglas’ concerns. It then chose the administratively expedient method of admitting the evidence and applying a confidentiality direction:
The Committee is mindful of the argument made by ACJ Douglas concerning the impact that this investigation and prospect of the photographs being adduced into evidence may have on her. However, the Committee cannot unfortunately abdicate its statutory role and functions. In light of the nature of the photographs, the Committee reiterates, however, that upon the photographs being adduced into evidence, it will issue the necessary confidentiality, sealing and non-disclosure orders in accordance with s. 63(5) of Judges Act in relation thereto. This will ensure that this Committee will have access to the relevant information, while limiting the scope of the disclosure so as to protect any right to privacy of ACJ Douglas.
Quite apart from the abysmal legal skills in the committee’s decision, the committee’s compass seemed very much to be off kilter. What, indeed, were its statutory role and functions? Did s. 65 of the Judges Act require the panel to turn the capacity hearing into an obscenity trial, akin to Jacobellis v. Ohio? Was the issue going to be that Douglas could stay on the Bench if the photos were artful, and should be removed if the photos were lewd? When one runs to ground the committee’s analysis, the Kafkaesque emptiness of juridical purpose is the only lasting impression with which one is left.
According to reports of Douglas’ rationale for giving up the fight, this ruling was the straw that broke the camel’s back. In Canada, our law is replete with judicial pronouncements against interim rulings denying a party’s day in court. How then did this happen? Given the tenuous grounds upon which the complaint was registered in the first place, it would have been important to circumscribe the factors for admissibility of the photographs based on necessity. Was it really necessary to view the photos? Should the panel have predicted an outcome in which Douglas forfeited her day in court?
Douglas ought to have been the subject of the inquiry, not the object of it
The history of the women’s movement in the 20th century, from the Suffragettes campaigning for the vote in Britain, to the Sartre-Beauvoir alliance in France, has been marked by women’s ambitions of equality with men. In Canada, the recognition of women as “persons” came with a landmark constitutional law decision of our Supreme Court. In the hierarchy of things, self-determination depends on one’s place in the grammatical structure, who is acting and what is on the receiving end of the act. Accountability and responsibility is about what one has done. Historically, women and children were considered to be of diminished responsibility in the eyes of the law, because of the paucity of acts they were legally empowered to do. Self-determination and one’s place in the common phrase are inextricably part of the narrative.
In the Douglas inquiry, it has always been hard to see what she has done, and to see her as anything other than the victim of her late husband’s malfeasance. At that level, without an actus reus and mens rea, many have wondered how she could have become the subject of the inquiry. If she could not be the subject of the inquiry, then how could the tribunal proceed to review her conduct?
Any undergraduate gender studies major can spot the Inquiry Committee’s legal blunder. By making the photographs the subject of investigation, Douglas has been made an object of the inquiry. The reason why second-wave feminists protested the entry into the mainstream of sexualized depictions of women but did not call for the removal of Masters’ paintings from art galleries, was the difference between the woman’s body as object and the woman as subject. (This is the distinction which the Taliban and other gynophobes fail to make, when censoring or destroying depictions of female nudity.) Thus, a painting of a nude Susanna by Reubens, a devout Catholic, contrasts a clothed model/actress Brooke Shields in a Calvin Klein Jeans magazine ad. Reubens told a biblical story in which the woman protagonist was viewed bathing in her private garden by voyeurs, who then blackmail her. Calvin Klein Jeans, speaking through Ms. Shields, famously asked viewers to guess what came between her and the jeans she was wearing.
Somewhere between Susanna and Shields would be Canada’s 19th Prime Minister, Kim Campbell, who controversially bared her shoulders behind her Queen’s Counsel robes. Former Liberal Party of Canada leader Bob Rae, filmed nude with CBC-TV personality Rick Mercer, failed to spark similar debate.
We have second-wave feminists to thank for the gender equality provisions in our Charter. In retrospect, it is hard to imagine why this basic right faced such opposition at the time, from both of our binary genders. The limitations on this perspective have emerged in recent debates over the treatment of sexual assault victims who want to testify wearing the face-covering headdress of a patriarchal religious or moral code. Here, by treating the existence of an uncovered image of Douglas’ body as a factor in her ability to remain a judge, the committee decided to judge the image, not her. This analysis does not depend on any finding, as some have discussed, that the original taking of the photos may also have been abusive.
Whatever the photographs actually depicted, it was not disputed that they showed the judge, a lawyer at the time they were taken, in a state of undress. Whatever one’s views about the propriety of allowing such photographs to be taken, allowing them to have been taken and whether Douglas knew her husband had uploaded them to an internet site (which she denied) which were the subject of inquiry. The actual photographs, in this context, were immaterial. The proof of this logic is that the hearing, had it any merit, ought to have proceeded whether or not the photographs continued to exist. The subject of the inquiry was Douglas and her conduct, and whether the conduct merited disclosure in an application for judicial office. Focusing the inquiry on what was depicted in the photographs, rather than who or in what circumstances, the jurists standing in judgment over Douglas objectified her body and therefore threatened her dignity. Suddenly, a person who had put up with years of personal upheaval and was ready to defend the charges gave up and offered to leave office.
Blackmail is the threat, not the naughty pictures
The Inquiry Committee thus showed itself out of its depth on the gender dynamics of a proceeding whose very pith and substance was gender dynamics. While one might offer excuses for the committee having skipped the Gloria Steinem book tours, it is harder to forgive the failure to recognize the legal policy consequences of its unnecessary ruling that the images be admitted into evidence.
If the consequences of disclosing the existence of personal secrets is unceremonious removal from public life, the secret as object has value only to one person or class of persons: criminals seeking to exploit public officials. In an age when people with ill intentions can find out just about anything about anyone by hacking into databases, and when governments are taking measures to outlaw “revenge-porn”, the Douglas Inquiry was the opportunity to combat all forms of cyber-blackmail as an instrument of control over judicial officers. Instead of removing this weapon from those who would seek to compromise a judicial officer, the committee has made the weapon more lethal. Can this have been consistent with the committee’s mandate under s. 60(1) of the Judges Act, to “promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts”?
By insisting on viewing the photographs and making them relevant to the question of the capacity of a judge to sit on a Canadian court, the CJC Inquiry Committee has itself made them an issue. The Committee has thus rendered our judges blackmail targets, not because of of what such photographs might depict, but rather because a ruling and precedent that the photographs can precipitate a capacity inquiry leading to removal from office. By increasing the value to a blackmailer of information of the photographs, the legacy of the Lori Douglas Inquiry is obvious:
- increased vulnerability of the independence and integrity of the Canadian judiciary
- discouragement of qualified candidates from applying for judicial office, not only among those who may have been victimized as Douglas was by her late husband, but also anyone with an unconventional but lawful private activity
Making any lawful activity unlawful, or creating an offender out of the victim of an act, is overstepping judicial authority. Judges make bad legislators because of the undue risk of unexpected consequences. Such risks are usually detected by parliamentarians with support from committees, policy staff and public consultations. If parliamentarians get it wrong, they can pass amendments. Judges and tribunals have to wait for the next similar case to come along, and the interim the bad law from the bad case remains the law of the land.
How should judges judge the judges? What was exposed in this narrative was not Douglas’ body but the human frailty of those who occupy trusted offices. As people become more complex, so will judges, politicians and law enforcement officers. To expect such officials to lead monastic lives, separated from the rest of Canadian society, will only lead to harsh, sharp-edged law such as the ruling on evidence that precipitated Douglas’ downfall. Such an approach to law can only lead to unqualified people seeking office, the encouragement of those unable to draw the line between lawful and unlawful private diversions and thus immune to the extortionist’s craft.
Clearly, we need better and clearer articulation of the circumstances in which judges can be removed from office. We cannot make this the end of the debate over this troubled case. To ensure that Lori Douglas’ case means something, it falls upon us, as members of the public and as members of the Bar, to advocate clearer guidelines. That way, if another Lori Douglas comes along and it is clear he or she did nothing wrong, the complaint can be summarily dismissed; and the public can be confident that judges can preside over their own discipline.