TORONTO – The council that handles complaints against Canada’s judges, including one against a Manitoba justice photographed in the nude, has taken its fight against judicial scrutiny of its own conduct to the Federal Court of Appeal.
In a notice filed this week, the Canadian Judicial Council, which has drawn harsh criticism for its handling of the case, argues Federal Court had no right to review its actions — a fight it lost in lower court last month.
The notice obtained by The Canadian Press alleges Federal Court Judge Richard Mosley made several legal errors in slapping down the council’s assertion that it is not subject to judicial review.
Mosley, the notice maintains, “erred in law and principle, misapprehended the evidence before him, and erred in the application of legal principles to the facts at issue.”
The appeal is the latest legal manoeuvre in the 3 1/2-year case against Lori Douglas, currently under suspension as associate chief justice of Manitoba. Douglas has been fighting for her job since her husband posted photos of her posing provocatively on the Internet without her permission.
When Douglas complained to Federal Court that the CJC’s inquiry panel was biased against her, the council argued the courts had no jurisdiction to hear her complaint.
Mosley firmly rejected that notion.
The council is also appealing his ruling that the “independent counsel” retained to help the CJC panel hearing the Douglas case was not subject to solicitor-client privilege.
In light of his decision, Mosley ordered the CJC to give Douglas correspondence related to the resignation of Guy Pratte, who quit as independent counsel to the inquiry panel in August 2012.
“(Mosley) erred by relying on irrelevant considerations and ignoring important evidence,” the appeal notice claims.
Lawyers for the council nor Douglas could be immediately reached for comment Wednesday.
The Douglas case has focused scrutiny on the judicial council — which comprises the country’s chief and associate chief Superior Court justices.
Veteran lawyer Earl Cherniak, who has acted as independent counsel, said previously that Mosley’s ruling showed the council system was “highly flawed” and called its conduct in the Douglas case a “stain on the whole system.”
Retired Ontario chief justice Patrick LeSage — who spent about 15 years as a council member — called it “odd” the CJC would essentially try to place itself above the law.
The judicial council has appointed two judges and a lawyer to replace the five-judge committee that resigned en masse in November amid the controversy, but any hearing is again on indefinite hold given the court appeal.
The CJC has also appointed a new independent counsel, who has already said she believes she is in a solicitor-client relationship with the inquiry committee.
The judicial council could recommend Douglas be removed from the bench, although any such decision can only come from Parliament.
© The Canadian Press, 2014