Thursday, December 1, 2016

CJC Inquiry Committee Recommends Removal of Justice Camp Affirming Principle that Removal Not to be Undertaken Lightly

   Justice Camp must be removed from judicial office in order to maintain public confidence in the justice system recommends the Inquiry Committee established to adjudicate the complaint against him stemming from statements he made during the trial of R  v. Wagar.  Readers will recall that this is the judge who asked the complainant in a sexual assault trial why she did not keep her knees together in order to avoid penetration and soundly called into question the fairness and rationale for the "Rape Shield Law".  The" Rape Shield Law" is a statutory amendment which was made to the Criminal Code of Canada to presumptively designate the complainant's historical sexual behaviour inadmissible.  The Supreme Court of Canada found this law to be constitutional in the case of R  v.  Darrach [2000] 2 S.C.R. 443.

   The Inquiry Committee's report is very instructive.  I will highlight some of it below.

[242]   A finding of misconduct does not necessarily lead to a recommendation for removal from office.  The Committee must now consider whether the Judge's misconduct renders him incapable of executing the judicial office.

The Test for the Removal of a Judge

[243]   The test for the removal of a judge was developed by the Inquiry Committee into the conduct of Justices MacKeigan, Hart, Macdonald, Jones and Pace, which has become known as the Marshall Inquiry.  The inquiry arose from comments that judges of the Nova Scotia Court of Appeal made in their reasons on a reference regarding the conviction for murder of Donald Marshall Jr. , in which the Court of Appeal acquitted him of murder.

[244]   The majority of the Inquiry Committee in the Marshall Inquiry observed that the judicial role requires decision-making "free from external interference or influence, and as a corollary, judges are under a "judicial duty to exercise and articulate independent thought in judgments free from fear of removal.  The duty does not "immunize judges from fair criticism, but "it guarantees that the expression of opinions honestly held by judges in their adjudication of the relevant law, evidence or policy in a specific case will not endanger their tenure.

[245]   The majority in the Marshall Inquiry acknowledged the words of the Supreme Court of Canada in R   v.  Valente that "the removal of a judge is not to be undertaken lightly.  The majority explained that judicial independence "attained entrenchment in our constitution not merely, or even mainly, for the benefit of a judiciary.  It is also a fundamental benefit to the public served by the judiciary.

[248]   The majority in the Marshall Inquiry also stated that the test for removal of a judge must allude specifically to public confidence in the administration of justice, be objective, and "be used in part, at least, on conduct which could reasonably be expected to shock the conscience and shake the confidence of the public as opposed to conduct which is, and often must be, unpopular with part of the public".

[278]   Justice Camp's misconduct is manifestly serious.  It caused significant harm to public confidence in the judicial role, in an area of law in which the courts and Parliament have made concerted efforts to enhance public confidence over the past four decades.

[281]  Fundamentally, Justice Camp's misconduct is rooted in a profound lack of impartiality and failure to respect equality before the law.  As the majority in the Marshal Inquiry made clear, an important element in the test for removal is the presence of bias. The majority emphasized, however, that what is at the core of bias is not having existing views or attitudes, but rather a failure to control those existing views or attitudes: "True impartiality is not so much not holding views or having opinions, but the capacity to prevent them from interfering with a willingness to entertain and act on different points of view".

[325]   It is our view that, on all of the evidence, this case meets the high threshold for removal.

[327]   The problem with Justice Camp's misconduct was not that he had gaps in his knowledge, but that he filled those gaps with an antipathy towards legislative reforms in the law and reliance on discredited stereotypes and myths.  Justice Camp by his own evidence, was familiar with the leading cases as well as the Criminal Code provisions dealing with sexual assault.  In other words, he ignored the fundamental requirement of a judge to accept that although he  has knowledge gaps, he must proceed in a way that reinforces confidence in the integrity of the judiciary and does not imperil it.

Analysis and commentary:

   The removal of a judge from office is a very serious matter in our system of law. In lesser systems of law this task is often based on arbitrary criteria and the whim of the decider. We have departed from this manner of operation and removal in our system is fueled by an objective determination that not only has the judge committed an act of misconduct but that act of misconduct is such that it renders him or her incapable of executing judicial duties.

   Fairness, impartiality and integrity are three of the key traits required to judge. Hence, acts committed in the execution of the judicial function tending to call into question any of these traits are the best candidates for removal from office. Where there is no evidence that a judge has committed any act of misconduct with respect to the adjudication of a case removal is NOT the presumptive remedy. In the CJC forum where the only available remedy is removal such a judge ought not to be removed from office and this is borne out by the history of cases dealt with by the CJC. In forums such as Ontario where there exists a graduated penalty scheme removal ought NOT to flow from this type of judicial misconduct.

Committee to be Commended:

   In reviewing the Committee's Report in this case I was impressed with the professionalism and dignity with which they approached their duty.  Their Report speaks to the issue before them in an impartial and fair tone which focused on the issue at hand and not on Justice Camp as a person. On the facts of this case the Committee could have attacked Justice Camp as a person but they seem to recognize that this was not the task which they were called upon to adjudicate. They restricted their inquiry to that which was properly before them.  This is a very important and often overlooked aspect of these types of proceedings.  The manner in which the removal is executed speaks volumes to the integrity of the administration of justice itself.

NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance.  The removal of a judge from office is an issue of public importance. The manner in which this removal is executed is perhaps a more significant issue of public importance. In the final analysis, justice must be seen to be done.


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