Unhappy Camper

The shortcomings of the report into the misconduct of Justice Camp

The Inquiry Committee set up by the Canadian Judicial Council to investigate whether Justice Robin Camp ― the “why didn’t keep your knees together” judge ― has “committed misconduct and placed himself, by his conduct, in a position incompatible with the due execution of the office of judge” has produced a report concluding that he did. The Report has been praised, not least for its pedagogical qualities. But of course, its primary function is not to be a teaching aid in educating lawyers and judges about rape myths and the conduct of sexual assault trials, useful though it may be in doing that. It is, first and foremost, the potential foundation for Parliament’s exercise of one of its most tremendous powers: that of moving an address for the removal of a judge. And in that respect, in my view, the Report falls short of what would have been desirable.

To be clear: I do not say this out of any sympathy for Justice Camp. His conduct towards the complainant (and, to a lesser extent, the prosecutor) during that notorious trial was appalling, as the Report details. And, unlike Brenda Cossman, I do not think that whatever efforts Justice Camp has undertaken since to educate himself about the history and purposes of sexual assault law are enough to allow him to go on in office. This re-education, whatever its value, cannot address the fact that he had the conceit of conducting a trial in an area of law about which he knew next to nothing. Since he is now at the Federal Court, there would be no sexual assault trials in Justice Camp’s future even if here were to stay there, but there could be plenty of other cases in areas of the law about which he does not know much ― and I do not think that litigants who appear before him in such cases can be assured that he will make enough efforts to educate himself about those. So there are sufficient reasons in the report for Justice Camp to resign ― indeed, to make resignation the only right course of action.

But are there sufficient reasons for Parliament to fire him? That is not so clear to me. The Report never quite articulates a clear reason why Justice Camp should be removed from office. Instead, it seems that a combination of several factors, which may or may not have been sufficient on their own (we are never told), lead to that conclusion. Such an approach is not necessarily objectionable in other contexts, but it is a problem here, because, not knowing which of the Report’s concerns might have been the decisive one, governments, activists, or simply disgruntled individuals with an ax to grind may be tempted in future cases to use any one of them as a stand-alone motivation for an attempt to remove another judge. And this is disturbing, because these concerns can potentially extend to circumstances quite unlike those involved here, and the exercise of any power, but especially one as awesome (in the old sense of the word) as the removal of a judge, in the absence of clear principles limiting this power, is worrying.

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Part of the reason why the Report suggests that Justice Camp ought to be removed from office is simply the sexist stereotyping that many of his comments during the trial and his subsequent reasons for judgment reflect. But it is only a part, and as I read the Report not the decisive one. Rather, the Report puts a great of emphasis on the fact that Justice Camp’s comments demonstrated his “antipathy towards laws designed to protect vulnerable witnesses, promote equality, and bring integrity to sexual assault trials”. [6] The Report suggests that “antipathy” towards the law the judge is charged with applying, or maybe to the values underlying this law, in itself amounts to bias ― though it is not quite clear whether this is only in the unique circumstances of a sexual assault trial, but perhaps more generally.

The Report notes that “[g]enerally, judges refrain from commenting on the merits or wisdom of laws enacted by Parliament or the provincial legislatures”, but also “that judges are permitted to criticize the law in certain contexts”, [86] especially in constitutional cases. The Report concludes, however, that

Justice Camp’s comments about [the ‘rape shield’ provision] of the Criminal Code are far removed from … permissible criticism. His comments were gratuitous and stemmed from a limited understanding of what he was so quick to criticize. Moreover, his criticisms were not based on thoughtful analysis nor even any analysis at all. [88]

This criticism is to be contrasted with, not compared to, the good sort of criticism that “ha[s] nothing to do with the values underlying those provisions” that a judge is criticizing, “and everything to do with the well-known and widely accepted fact that” the application of these provisions did not serve these values well. [89] The report finds that “Justice Camp held a bias, whether conscious or unconscious, in the form of an antipathy towards the present laws governing sexual assault trials”; [104]  indeed, “his bias, whether conscious or not, led him to express disdain for the law in its current state”, [108] to formulate “comments … reasonably understood as being disparaging of legislative attempts to remove discredited myths from sexual assault law”. [182]

What the Report sees ― quite fairly, I hasten to add ― as Justice Camp’s “disdain for the careful development of the law through legislation and jurisprudence designed to bring balance and equality to a process that historically discriminated against women” [276] is, if I understand correctly, every bit as important as his underlying sexism in justifying Justice Camp’s removal. On the one hand,

[s]exual assault law and sexual assault trials are laden with concerns about gender equality, bias and discrimination. Justice Camp’s manifest failure to behave impartially and to demonstrate respect for equality in such a context, over a protracted period of time, has raised considerable public concern about how women who allege they have been sexually assaulted are treated in the judicial system. [287]

On the other,

[w]hen a judge displays disrespect or antipathy for the values that a law is designed to achieve or towards witnesses whose vulnerability is exposed, it encourages a similar disrespect or antipathy in others in the judicial system. Judges are not viewed simply as participants in the justice system. They are expected to be leaders of its ethos and exemplars of its values. … A judge who uses his role in a criminal trial to denigrate values he should respect commits serious and significant misconduct. [289, 291]

The Report makes an additional, and only distantly related point, stating that,

Justice Camp’s conduct … renders it more difficult for judges to make credibility findings adverse to a complainant in a sexual assault prosecution without fear of facing complaints that they too are part of a system rife with bias. [292]

Again, it is difficult to tell what contribution this argument makes to the report’s overall conclusion: is it important? is it necessary? is it sufficient? There is no telling.

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None of the points the Report makes are wrong. But, as I suggested above, because we do not know how decisive each of them is, I worry about their being taken in isolation and used to attack judges in the future. Even if the attacks prove unsuccessful, they are liable to have a chilling effect that would undermine judicial independence.

Take the very last point, about Justice Camp’s conduct contributing to an impression that, to use a recently popular term, the system is rigged. It is very likely true. But how much can it matter? If a court issues a decision which is legally questionable and which provokes a public outcry, this is likely to “render it more difficult for judges” to reach similar outcomes “without facing complaints that they too are part” of a rigged system. But does this mean that any legally questionable, or indeed obviously mistaken, judicial decision is grounds for complaint to a judicial council (as opposed to appellate intervention, which is supposed to be the remedy for errors of law, even very bad ones)? I don’t think this is what the report means to suggest, but on its face, its argument is not limited to “credibility findings adverse to a complainant in a sexual assault prosecution”, and could be applied in all sorts of other situations.

The report’s discussion of judicial “antipathy” for or “denigration” of the law suffers from the same flaw. Is it always true that antipathy to a law that a judge ought to apply ― or perhaps to the values underlying this law ― amounts to bias and hence to misconduct? If so, then opinions such that of Judge Richard Posner in Khan v State Oil, 93 F.3d 1358 (1996) (7th Cir.), much of which was devoted to showing why the relevant Supreme Court precedent was “unsound when decided”, would amount to judicial misconduct (although Judge Posner actually applied the precedent that he was criticizing). And by the way, why is there, if indeed there is, a distinction between judicial criticism of the law, which may (at least sometimes) be tolerable (though this isn’t very clear), and judicial criticism of values underlying the law (which apparently is not)? Judges, after all, are not just sworn to uphold the values of the law ― they are sworn to uphold the law itself, though they sometimes forget this, so if criticism of values suggests that a judge might not do his or her duty, then presumably so does criticism of the law itself.

But perhaps criticism only amounts to bias when the law in question is “laden with concerns about gender equality, bias and discrimination”. Yet what area of the law is not laden with concerns about equality, bias, discrimination ― at least in the opinion of some theorist? (And whose opinion about these matters ought to count?) I am not being snarky here ― I certainly do not mean that the report is wrong about sexual assault law being laden with these concerns, or that various critical theorists are always wrong about the presence of bias in other areas of the law. What I am saying is that if the existence of concerns about bias, or perhaps about one specific form of bias (but then, why this one in particular?), are the limiting principle that defines when criticism of the law is and is not permissible, then the principle is hopelessly uncertain, and cannot do much limiting at all.

Let me make a final point in this vein, which is something of a pet peeve. If, as the report suggests, judicial antipathy to the values underlying existing law is in itself bias against those whom the law is meant to protect, then isn’t vocal sympathy for the values underlying existing law bias in favour of its beneficiaries? And isn’t bias in favour of a party or, as in this case, a witness, just as much a breach of judicial impartiality as bias against one? This isn’t just a theoretical concern: courts do sometimes go out of their way to commend the law, and while I have argued elsewhere that they should avoid doing so, I would not want judges who commit this particular judicial sin to be the subject of inquisition.

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Perhaps I am making a little too much of the Report’s failure to draw clear lines between what is and what is not permissible. Perhaps a little chilling effect forcing judges to err on the side of circumspection in their commentary might even be a good thing. Then again, I doubt somehow that judges who go around the country or even the world telling people that their job is “to think about what’s best for Canadian society” rather than anything so lowly as merely applying the law will be deterred.

 It may be that judicial misconduct is, to some extent, one of those “I know it when I see it” things. But people disagree about what it is that they see. Where I see distressing arrogance, others see business as usual, and vice versa.  We might all agree about Justice Camp, but it is likely enough that we will not agree about some future cases. And while reasonable disagreement is inevitable in law and politics, and arguably something to be embraced rather than feared, there a few areas where clarity and generally understood rules are especially important. The realm of permissible interference with judicial independence is one of them. For this reason, the Report leaves me with a very uneasy feeling.