Motion by Associate Chief Justice Douglas for stay of Canadian Judicial Council’s evidentiary decision pending judicial review

Administrative law – Decisions of administrative tribunals – Canadian Judicial Council – Judges – Professional governance and discipline – Investigations – Public interest – Judicial review – Stay of proceedings – interlocutory – Disclosure of records – Evidence – admissibility

Douglas v. Canada (Attorney General), [2014] F.C.J. No. 1149, 2014 FC 1115, Federal Court, November 21, 2014, Mosley J.

Associate Chief Justice Douglas of the Court of Queen’s Bench of Manitoba was the subject of an investigation undertaken by the Canadian Judicial Council into her conduct. The allegations under investigation included failure to disclose facts in her application for judicial appointment regarding the existence of online photographs of a sexual nature contrary to the image and concept of integrity of the judiciary, and failure to disclose those facts in the course of a prior inquiry.

In the context of the Canadian Judicial Council investigation, Douglas ACJ filed a motion requesting that the Inquiry Committee investigating the matter dismiss the allegations without resort to a formal evidentiary hearing and declare the photographs in issue inadmissible. The Inquiry Committee dismissed the motion. It found the photographs were relevant to certain allegations and emphasized that it would protect Douglas ACJ’s privacy by issuing the necessary confidentiality, sealing, and non-disclosure orders.

Douglas ACJ filed an application for judicial review and subsequently filed a notice of motion seeking an order staying the ruling regarding the admissibility of the photographs.

The Court granted Douglas ACJ’s motion and ordered a stay pending the determination of the judicial review. The court referred to the tripartite test for interlocutory stays: (1) serious issue to be tried; (2) irreparable harm if the stay is not granted; and (3) balance of convenience. Douglas ACJ raised a serious question regarding the relevance, probative value, and prejudicial effects of the photographs. The Court found that in the absence of a stay, Douglas ACJ would suffer irreparable harm in the nature of an adverse effect on her personal and professional reputation. The Court accepted that it was reasonable to expect that both members of the Inquiry Committee and a full quorum of the Canadian Judicial Council (17 or more Chief Justices or Associate Chief Justices) would look at the photographs while exercising their functions. Notwithstanding that some of the photographs were publicly available, the Court held Douglas ACJ should not be made to endure further disclosure of the photographs before determination on judicial review. In the circumstances, the court found the balance of convenience favoured granting the stay in order to prevent disclosure of the images unless absolutely necessary.

The Court ordered a stay pending the determination of the judicial review and ordered that the judicial review be heard on an expedited basis.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com.

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