I was recently listening to a radio program featuring racialized lawyers in Ontario discussing the challenges they faced in the legal profession and was struck by my reaction. I thought: how unfortunate that this was all being shared publicly. Unfortunate, not because I did not believe the experiences of these individuals or sympathize with the challenges they were describing, but because I didn’t want people to know about the challenges. Why would anyone hire a racialized lawyer if they knew that the lawyer felt that there was a higher standard placed on them in court, by judges, as compared with their non‑racialized colleagues?
I wish my reaction was that this was the unusual experience of one lawyer and not a reflection of the justice system’s treatment of marginalized groups generally. Instead, it was one which exposed my own distrust in the Canadian judicial system and its impartiality. And my belief that the justice system as a whole does not provide the same opportunities and access to justice for individuals of colour, women, and other marginalized groups.
Around the same time these lawyers were sharing their challenges, the inquiry by the Canadian Judicial Commission into the conduct of Federal Court Judge Robin Camp was also making headlines. The inquiry arose based on a complaint by the Alberta Minister of Justice Kathleen Ganley. The complaint had been submitted to the Canadian Judicial Council (CJC) at the time Justice Camp was appointed by the Conservative government to the Federal Court.
The basis of the complaint was the conduct of Justice Camp when he presided over a 2014 sexual assault trial with a young female complainant. Justice Camp acquitted the accused, and the Crown appealed the acquittal on the basis that Justice Camp did not understand the law as it related to sexual assault. The Court of Appeal overturned the acquittal in a very brief decision which concluded that Justice Camp’s:
“[c]omments throughout the proceedings and in his reasons gave rise to doubts about the trial judge’s understanding of the law governing sexual assaults and in particular, the meaning of consent… We are persuaded that sexual stereotypes and stereotypical myths, which have long since been discredited, may have found their way into the trial judge’s judgement.”
By his own admission, Justice Camp stated he not have the requisite knowledge of the area of law that he was presiding over in 2014. According to his biography, Justice Camp’s legal practice, prior to being appointed a judge, was in the area of commercial litigation. He was appointed to the provision court, criminal division and was also the head of the domestic violence court.
The comments pulled from the trial transcript are disturbing (the full transcript is not publicly available to protect the identity of the complainant). Justice Camp, in his opening submissions to the CJC, did agree that they amounted to judicial misconduct on his part because the comments were insensitive — but he did not admit that it led to biased reasoning in his findings. In short, according to this reasoning, the phrasing should have been different, but he did not do anything wrong.
The key question before the judicial inquiry committee was whether Justice Camp’s removal was the only way to uphold public confidence in the judicial system.
Impartiality and independence are fundamental tenets of the justice system in Canada. According to the Canadian Judicial Council, impartiality “does not require that the judge have no sympathies or opinion; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.” The justice system in Canada is based on the proposition that judges exercise their decision-making power in a manner that demonstrates that the judge has applied the law to the facts of each case, not based a decision on the judge’s own individual beliefs:
“The reasonable person, through whose eyes the apprehension of bias is assessed, expects judges to undertake an open‑minded, carefully considered, and dispassionately deliberate investigation of the complicated reality of each case before them.”
Justice Camp’s position is that the conduct in this case does not warrant his removal from the bench. He has now received the appropriate training that would allow him to understand contemporary sexual assault law in Canada. He was appointed by a selection committee and a government that should have ensured he had the requisite knowledge to perform his duties, or provided him with training. But the problem with this perspective is the entitlement that comes along with insisting that it is appropriate to make these types of comments and remain a judge. Or the entitlement that comes along with thinking it is appropriate to undertake this type of significant responsibility without questioning whether you are in fact qualified and should be in this position.
We don’t know what the recommendation of the inquiry committee will be, but if it finds that removal would not be warranted, it will be upholding a judicial system based on entitlement and not merit. Judges should not get second chances when their conduct falls below the standards required of the office. If that is the result, it creates a judicial system that should be distrusted.
Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities, and socially-minded small business and individuals in Ontario.
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