Saturday, September 10, 2016

The Justice Camp Case: Why Removal From Judicial Office is Such a Big Deal

   The judicial misconduct proceedings involving Justice Camp have once again brought the issue of removal from judicial office into the spotlight.  While hearing a sexual assault case Justice Camp asked the complainant why she simply did not keep her knees together if she did not want to be penetrated.  He also criticized the rape shield provisions in the Criminal Code and made other inappropriate comments. Justice Camp has acknowledged his wrongdoing and has taken affirmative steps to correct or modify his thinking around the issues of sexual assault.  Assuming that Justice Camp is truly remorseful and that he can successfully modify his thinking - should he nonetheless
be removed from office ?  That is the question which is currently before a panel of the
Canadian Judicial Council.  

   Removal from judicial office is a rare occurrence in Canada.  Only two judges have been ordered removed from office in the history of the Canadian Judicial Council.  While many in the media and the public are quick to advocate that our system of adjudicating judicial misconduct is in chronic need of reform and that removal from office ought to occur with greater regularity, those advocating for such changes are guided more by passion and political correctness rather than law and logic. Removal from judicial office is a matter of law and not politics.

     A judge's removal from office is a very serious matter in a system with a written constitution which subscribes to The Rule of Law and the constitutional principle of Judicial Independence.  Judicial Independence, simply put, is the foundation upon which The Rule of Law stands. There can be no Rule of Law in the absence of Judicial Independence.  It is the court which is the arbiter of all legal disputes under our constitution - including disputes in which either the executive branch or legislative branch may have a specific interest.  Accordingly, as the Supreme Court of Canada recognized in  The Queen   v.  Beauregard [1986] 2 S.C.R. 56 , "judicial independence is essential for fair and just dispute-resolution of individual cases.  It is also the lifeblood of constitutionalism in democratic societies."  When looked at from this important perspective the removal of a judge from office must be approached with the utmost of caution and strict adherence to natural justice and fairness throughout the entire process - from investigation to conclusion of the hearing.  Clearly, anything less than this would understandably call into question the legal legitimacy of the removal process.  

Traditional Grounds for Removal:

     Impartiality and integrity are arguably the two most significant qualities which a judge must have in order to perform their judicial duties.  Impartiality here refers to an absence of bias towards or against any of the parties actually before the court or interests which may be impacted by the decisions.  Integrity here refers to the trait of honesty and fair-mindedness.  Conduct by a judge which flows directly from the discharge of their adjudicative function which call into question these two fundamental traits are clearly among the most serious forms of judicial misconduct.

Asserting Dishonesty Against
A Group from the Bench:

     In Moreau-Berube   v.   New Brunswick (Judicial Council), 2002 SCC 11 Judge Moreau-Berube was removed from office for making derogatory comments about the residents of the Acadian Peninsula while presiding over  a sentencing hearing.  She stated that the majority of residents of the Acadian Peninsula were dishonest.  It is necessary and instructive to reproduce a portion of the judge's utterance so that the reader can fully appreciate the substance of this judge's misconduct.  The following is an excerpt of what she said in open court:

[Translation]  "These are people who live on welfare and we're the ones who support
them; they are on drugs and they are drunk day in and day out. They steal from us left
, right and centre and any which way, they find others as crooked as they are to buy the
stolen property.  It's a pitiful sight.  If a survey were taken in the Acadian Peninsula,
of the honest people as against the dishonest people, I have the impression that the
dishonest people would win.  We have now got to the point where we can no longer
trust our neighbour next door or across the street.  In the area where I live, I wonder
whether I'm not myself surrounded by crooks.  And, that is how people live in the
Peninsula, but we point the finger at outsiders.  Ah, we don't like to be singled out in
the Peninsula.  And it makes me sad to say this because I live in the Peninsula now.
It's my home.  But look at the honest people in the Peninsula, they are very few and
far between, and they are becoming fewer and fewer"....

Exhibiting Bias that Denies Principle
of Equality Before the Law From 
the Bench:

     During a murder trial involving a woman who killed her husband the trial judge
compared women to men with the purpose of suggesting that somehow women
were more sadistic than men by stating - "even the Nazis did not eliminate millions
of Jews in a painful and bloody manner. They died in the gas chambers, without
suffering."  In recommending removal from office the Council stated that: "
Judges are, of course, entitled to their own ideas and need not follow the fashion
of the day or meet the imperatives of political correctness.  However, judges
cannot adopt a bias that denies the principle of equality before the law and brings
their impartiality into question." (see Canadian Judicial Council Inquiry re Bienvenue
J. , 1996)


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