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Secret letters in nude judge case released

TORONTO - Previously secret correspondence released Friday has shed light on the sudden resignation of a key player in the disciplinary hearing against a senior Manitoba judge whose husband posted naked photographs of her on the Internet.

The letters show the Canadian Judicial Council in a bitter dispute with Guy Pratte — a lawyer hired as independent counsel by the hearing committee — who had raised questions about the fairness of the proceedings against Associate Chief Justice Lori Douglas.

Pratte had wanted the courts to decide whether the committee was treating Douglas shabbily with its aggressive cross-examination through its own lawyer of two witnesses favourable to Douglas.

The CJC, which maintains it is above judicial scrutiny, urged Pratte to withdraw his court application, arguing it would be "unseemly" for them to be seen to be at odds with each other.

"A grave difference of opinion exists between you and the Canadian Judicial Council," Norman Sabourin, the CJC's executive director, wrote Pratte on Aug. 24, 2012.

"The maintenance of the relationship between independent counsel and the Canadian Judicial Council cannot exist in these circumstances."

Pratte refused to withdraw his court application.

"I have no option but to resign as independent counsel effective immediately," Pratte responded days later.

"It is impossible for me to withdraw the (court) application, as you have asked me to do, without doing violence to what I believe...to be a sound position in principle and law, solely taken in the public interest."

The hearing into Douglas's conduct collapsed after Pratte and, later, the inquiry panel resigned.

The letters, which the CJC said it was releasing in the "public interest," appear to lend credence to bias assertions Douglas levelled at the CJC.

"If the committee is correct that it can cross-examine witnesses aggressively through its own counsel and...that independent counsel is powerless to clarify in a court of law the proper allocation of roles...then the notion of 'independent counsel' is for all practical purposes a hollow one," Pratte wrote in one letter.

Under the Judge's Act, the role of independent counsel is to help ensure the relevant evidence is presented and tested fairly to the inquiry committee.

The CJC had previously fought to keep the Pratte correspondence under wraps, arguing it was in a solicitor-client relationship with him.

Federal Court Judge Richard Mosley rejected that notion last month, along with the assertion that the judicial council — comprising the country's top judges — is beyond the reach of the courts.

Mosley did reject Douglas's contention the CJA's assertion of solicitor-client privilege showed institutional bias against her, and the CJA has categorically denied any suggestion of bias.

The 3 1/2-year-old case against Douglas has raised questions about how the judicial council performs its role of holding Canada's judges to account.

Several experts have been highly critical of how it has dealt with Douglas, including one who called its conduct a "stain on the whole system."

The CJC filed notice with the Federal Court of Appeal this week against Mosley's ruling that the courts do have jurisdiction to oversee its processes.

In an interview Friday, Sabourin said the Douglas hearing should now proceed.

"We've released the letters with Pratte so nobody can say that there's secret instructions in there that were given to (him)," Sabourin said.

"We want to prevent any attempt to delay the proceedings before the inquiry committee further."

The new three-member panel appointed to replace the five-judge committee that resigned in November is ready to proceed with the hearing despite the appeal, possibly within a few weeks, Sabourin said.

Douglas is suspended with pay. The judicial council could recommend she be removed from the bench, although only Parliament can execute any such action.

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