I judge the judges. We judge the judges.

by Mark Zaugg 31. July 2012 02:00

Editors note:

The Op-Ed section of my blog is both new and old.  Make no mistake, my blog is my opinion, my happenstance and circumstance, my experiences, my joys, my beliefs, my favourite mistakes and my foolish nonsense.  It's a place to have my say and monitor my own development of thought.  It has always been so.

I have also strayed to regions of great seriousness and importance of varying significance.  I've spouted nonsense, I've taken every chance I can to crack a joke, and sometimes I have vented complete and total rage at some of the most dreadful instances of injustice I have ever encountered.

I have previously called for criminal charges to be laid against the four (lamentable) officers of the RCMP who tasered and - in my opinion - murdered Robert Dziekanski.  I have been openly and caustically critical with the police for their attitudes towards tasering and their lack of restraint in previous situations.  Make no mistake, as a divorced man I remain keenly aware of their ability to take me down by any means at their disposal with merely the threat that I could potentially be physically violent.  They don't have to prove anything, they don't have to justify their actions, they only need say I have been reported as a threat.  No matter how credible the source.

So with the news that Benjamin (Monty) Robinson has quit the RCMP, and received a disgracefully light sentence for slaying a motorcyclist with his vehicle, I've renewed my interest in addressing these issues regularly.  My Ed-Op section is straight opinion, perhaps not entirely timely with the issues but I'll do my best to keep myself informed, to crystalize my opinions.  I've been writing this post in my mind for a while, what's new is the category in my blog.

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There is a terribly sorry inquiry happening in Manitoba.  I have personally found it both upsetting and unsettling.  Almost everyone reading this will instantly recognize I'm discussing Lori Douglas before I even mention her name.

A judge who, without her knowledge or consent, who was "...pimped out by a slimebag of a husband with a shaky grasp on reality and a shakier grasp of marriage" to (probably) misquote a female friend of mine.

The story is, without question, salacious and will appeal to so many of us simply because it represents an example from the pillars of our society who turned out to be no different than the rest of us.  It's always nice to see those who put themselves above us knocked down a peg or two.

But Justice Douglas did no wrong and is the unwitting victim of a mad fantasy of the deranged man whom she loved, is she not?

No.  She is no victim, she is not unwitting and she is no longer capable of sitting on the bench.  The nude photos on the internet do not bother me in the least.  Questioning whether she know or participated in a quest for interracial sexual relations with or without her husband do not interest me at all.  I have truly not bothered keeping up with all the details reported in the news.  The minutia of argument holds absolutely no water for me - what happened between Ms. Douglas, Mr. King and Mr. Chapman remains insignificant contrasted with how this case and their behaviour affects the courts each and every Canadian must rely upon.

The fact that graphic images of Ms. Douglas exist and have been propagated on the internet does not wither my opinion of her as a judge one bit.  Quite the opposite, in fact, I find solace that the judges and the lawyers who are placed into positions of power and decision making must retain their own humanity, living amongst the huddled masses which are ourselves and not isolate themselves in an ivory tower.  I believe that each and every judge be able to exemplify a cross section of humanity's characteristics - with limits.

A judge who has been convicted of first-degree murder has clearly demonstrated a complete disregard for the law they are to uphold and must be removed from the bench. 

A judge who has never received so much as a parking ticket probably has no business being on the bench either because they are unable to grasp that the law itself is imperfect and each and every one of us must have a slight broach the law on some occasion.

The Canadian Superior Courts Judges Association presents an exceptional page on the qualities required of a judge.  They cite the Supreme Court of Canada as saying the judge is "the pillar of our entire justice system" and the public has a right to demand "virtually irreproachable conduct from anyone performing a judicial function." 

Note that the Supreme Court did not say that judges need be without flaw, controversy free, or entirely free from scandal.  We critically rely upon people who are prepared and capable of rendering clear, decisive, impartial and open minded decisions.  We need judiciary with access to full and enriching lives, access to flaws and errors of judgement so they can be open and impartial to those who stand before them and render fair and appropriate decisions for each individual.

Ms. Douglas' standards of integrity are being questioned right now.  May people question her integrity on merely allowing compromising photographs being taken of her.  I don't question her standards on that, I question her standards on how her and her husband have dealt with the situation.  It is we, the people who must trust in her judgement as we stand before her, who must have confidence in her reasoning as a judge, and every last one of us who have questions for whatever reason need to be heard as forcefully as Ms. Douglas herself deserves.  Because Ms. Douglas is a family court judge, she absolutely requires a higher understanding of marriage and the requirements intrinsic to that institution.

A marriage need be a partnership between two people eager and willing to support each other and work with each other to succeed as a couple.  Mr. King's integrity of putting his wife in such a position is clearly beneath a standard I would consider acceptable.  His shouldering of the majority of the blame for this disgrace is appropriate.  His actions have violated the trust implicitly required in a marriage, particularly when his actions have severely impacted his wife's career, her esteem as a judge and her dignity as a person.  Ms. Douglas may or may not have been a party to Mr. King's actions at the time they happened, but she was a party to the marriage.  When $25,000 of hush money was paid to Mr. Chapman, it surely must have come up at some point.  I can't help but picture at some point between supping on foie gras and pear brioche and enjoying the Blanquette de Veau entree one would not speak out and say, "Pip, pip, my love, but the staff informs me that there was a transaction of $25,000 last month that is not showing in the accounting."

Okay, it's a stretch, but if lawyers can drop $25k without a spouse knowing about it, they're charging too damned much and we, the public, are well and truly in the right to demand better value in return.

A spouse does not just let that kind of money go without a reckoning.  Even had Ms. Douglas never been aware of such an unusual financial transaction (an unplausible assertion at best), she was a judge and has the expectation to be aware of what would affect her professional standing.  Whether she was ignorant or blindly ignorant, it is evident that this coming to light would negatively affect her and any such allegations must be treated carefully.  Instead they tried to bribe Mr. Chapman into keeping silent and going away and in doing so have brought disrepute upon the entire judiciary.

Judges cannot be open minded, decisive and unbiased when they have glossed over a major scandal like this with a sum of money.  Ms. Douglas can not demonstrate sound decision making with such a horrendously bad decision festering in her past.

Each and every man who stands before her has the right to question her bias.  Every man can ask the question, "Is this a judge who feels in her heart of hearts that the solution to all marital problems comes down to coughing up a particular sum of money?"

Each and every woman who stands before her has the right to question her bias.  Every woman can ask, "Is this a judge who feels I need to be submissive to my husband and acquiesce to his whims and desires in deference to my own?"

Every single case she has ever heard involving infidelity now has the question hanging above it of how the judge's bias impacted the case.  It may be positive, it may be negative, but it remains the right of each and every individual who stood before Ms. Douglas expecting a fair and open trial to question her bias.  Are we to accept that a judge who has made incredibly poor personal decisions is capable of only making rational and fair decisions within the court room?  Must she recuse herself from every case involving infidelity?  I will not begrudge a single soul the right to retroactively question their judge, but we simply cannot review each and every case.  Can we?  Is that the time and expense we can accept on an already overloaded family court system?  If you accept my argument that it is fair and reasonable that every case be able to raise questions, Ms. Douglas has potentially brought an enormous backlog of work back to the courts.

Ms. Douglas has held that it is not her doing, it was not her fault and she remains blameless in her own action and capable to render judgement.  She has single-mindedly defended her abilities as a judge and that none of her husband's actions impact upon her judgements.  I agree.  I don't believe for a second that the merely the presence of nude photos of her has tainted her decision making process.

But her inability to step backwards and acknowledge how detrimental the actions of her husband and herself could potentially be to the entire family court system screams of an ego driven, non-pragmatic blindness of how the Chapman "non-affair" has already affected her court.  The public uproar itself is evidence that she has damaged confidence in the family court system right across this country.

I have stood in front of a judge much like her.  I find it unfathomable to believe only a fair and balanced decision could be made by someone so disconnected to the cause and effect relationship of what has already happened and is now well known.  I cannot accept the judgement such a person would make in a pronouncement upon my life (thankfully I will never have to encounter Justice Douglas in a courtroom).

No one knows better than I that bad things sometimes happen to good people.  No one knows better than I that singular flaws in a marriage can lead to the breakdown of a relationship and irreversible damage.  No one believes more than I that a life lived earnestly, with time and great effort cannot be redeemed.

But just as a judge can sit before me and tell me their judgement is for the best, I am saying now that Ms. Douglas can not be an effective judge any longer and it is for the best that she stand down now.  Just as us mere plebeians must sometimes change career directions, she needs time to step away, reconnect with her own direction in life and rediscover how to serve herself, her profession and the public.

Without any doubt, I believe she has the potential to recover and become an excellent lawyer, capable of much greater empathy and forceful defence of her clients interests in the future.  This is wholly dependent upon her demonstrating an understanding of what we, on the other side of the courtroom, experience in marital breakdown.  She has failed to demonstrate the self-judgement to do the right thing and resign as a family court judge.  I have little faith she will come to the necessary epiphany soon.

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