“The Canadian Judicial Council [“CJC”] is a federal body created under the “Judges Act” with the mandate to promote efficiency, uniformity, and accountability, and to improve the quality of judicial service in the superior courts of Canada”

—CJC Homepage

It would be nice if the worst that Judge Robin Camp (as he then was) said to J.M., a complainant in a sexual assault case, was that she should have kept her knees together. I have had the chance to read the full complaint made by four law professors to the CJC as well as the trial transcript. Judge Camp’s comments, as reported in the media, were outrageous and terribly inappropriate, but worse was said that the media did not report on.

The professors’ complaint to the CJC is justified. That is not to say that it will or should result in the removal of Judge Camp, but he deserves to have his feet held to the fire for his comments in a very serious matter.

The CJC is a relatively new creature, having been formed in 1971. Most recently, the legitimacy of one of its inquiries into former Manitoba Associate Chief Justice Lori Douglas was called into question. Noted lawyer, writer, and renowned satirist Stephen Lautens covered the matter in some detail for the Canadian Lawyer Magazine, as have many other media outlets. Lautens described the CJC as “purposefully opaque” while setting out the CJC’s process in some detail. Give it a read—like everything else he writes, it is entertaining and informative.

B.C. has its own share of judicial misconduct—chief among them Judge David Ramsay, who sexually assaulted teenage sex workers, in many cases with the grotesque insensitivity of a sociopath, in Prince George. Before and after doing so, he adjudicated their matters in his court. Sometimes, he even offered lenient sentences in future matters in exchange for their discretion. Less serious but still scandalous was the case of former Chief Justice of B.C. John Farris, who was known to frequent call girls in the 1970s.

In Canada, judicial independence is a key tenet of our democracy. The Supreme Court of Canada has routinely found that to be the case for judges as well as adjudicators sitting on boards, commissions, and tribunals. It is crucial that judges be free from political or social interference or pressure to decide matters as they see fit, within the boundaries of their oath of office and the law. Otherwise, we end up having nothing short of the kangaroo courts of less enviable lands than Canada. Dare I say even the United States, where elected judges campaign on judicial decisions crafted to improve their chances of re-election and campaign funding.

Indeed, the CJC was created in order to protect and promote judicial independence. Prior to its formation, judges could be removed from office by Parliament and the Senate—there was no self-regulation protecting them from the whims of politicians.

At the same time, many Canadians lament “unaccountable”, “unelected” judges, particularly where a judge passes down what is seen as too lenient a sentence. Of course, accountability is a great thing, but how do we achieve that without interfering with judicial independence? Should we have elected judges, like they do in certain courts in the U.S.?

From my personal and professional perspective, when I think of the judges I have appeared before and come to know relative to the elected officials I see populating public office, I think it would be a tragedy to fill our benches with the likes of many politicians we see holding office, especially at the local level, where many seem to be dug in like ticks. It brings to mind Lord Denning’s famous quote about the chaplain saying a prayer in the British House of Commons before each session. The chaplain would look at the elected members present, and pray for the country.

The judiciary is what I would term a quasi-self-regulating profession, with the CJC cloaked with authority to hold judges to account under the Judges Act. If a judge is determined to be incapacitated or disabled from the due execution of the office of the judge by reason of: (i) age or infirmity; (ii) misconduct; (iii) having failed in the due execution of that office; or (iv) having placed themselves in a position incompatible with the due execution of that office, then the CJC may recommend that the judge be removed from office by Parliament and the Senate.

There is no middle ground. Unlike other professions, judges cannot be disciplined or sanctioned short of outright dismissal (assuming Parliament accepts the CJC’s recommendation). Since 1971, the CJC has only recommended the removal of two judges: one who used brutal language to minimize the Holocaust and to degrade women and another who made copious, outlandish, and apparently baseless conclusions in a murder trial (150 in total). Both resigned before they could be removed from office, although the latter did so within earshot of mandatory retirement. Former Chief Justice Farris resigned before the CJC process even got off the ground.

In this instance, while not a total remedy, one can take at least some solace in Judge Camp’s apology, voluntary enrollment in sensitivity training, and his appointment to the Federal Court. (The Federal Court largely tends to deal with appeals of federal administrative bodies, maritime law, and copyright matters. Despite its seemingly more serious title, it is not as important a court from a jurisdictional or practical perspective as the provincial courts, especially superior courts, such as B.C. Supreme Court or the Court of Queen’s Bench in Alberta.)

The absence of a happy medium creates a problem. As a society with a great interest in judicial independence and freedom, we ought to exercise extreme reluctance before removing a judge from office. The flip side of the argument is, arguably, that the threshold for removal should be set low in order to ensure that only the most qualified and respected judges continue to hold office. The trouble with that is a low bar prevents judges from exercising judgment with independence. Beyond that, if the judge’s conduct is not so egregious as to justify removal, then they are left in place with egg on their face while continuing to adjudicate matters. How many citizens and taxpayers would have confidence in judicial decisions, knowing that the presiding judge had been raked across the coals for misconduct by his peers? Would they feel that they are getting a “B-Class” judge?

The issue is thorny and reminiscent of the 2002 French presidential election: when it came down to a run-off vote, the electorate could choose from Jacques Chirac, a crook who had likely embezzled at least millions of Euros, and Jean-Marie Lepen, a neo-fascist xenophobe.

Cases where a judge is infirm would probably be easy. Cases like Judge Camp’s are tougher. His comments, while tasteless, grossly insensitive, and evincing a lack of appreciation for the realities in which complainants find themselves, might not interfere with his ability to adjudicate the type of cases that will come before him now. At the same time, and at the very least, public confidence in his judgment has been severely eroded. Jean Bienvenue, a Quebec Superior Court Justice who resigned following the CJC’s recommendation that he be removed, made two off-hand comments in his decision, (although, admittedly, that understates the impact of those comments). On the other hand, Judge Camp’s comments were made over the course of five days of hearing spread out over three months. He probably was not just having a bad day. Are his comments the reason we have appeals courts or the reason that judges can be removed from office?

I would tend to think the latter, particularly in an age where we understand that a significant barrier to sexual assault complainants coming forward is fear of the trial process—a process in which their conduct will be put under a microscope. Here, after Judge Camp’s degrading questions to the complainant, that process concluded with judicial reasons that started with a warning from an old man to a young man that because the law and social perspectives have changed, he and his friends must be “more gentle…patient…and careful” with women to “protect themselves.”

Michael McCubbin operates a busy litigation practice in downtown Vancouver, focusing on criminal, constitutional, and administrative law. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at straight.reasonable.doubt@gmail.com.