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Judging the judges – the public’s right to an impartial judiciary is paramount

|Written By Alison Gray
Judging the judges – the public’s right to an impartial judiciary is paramount

From opening submissions at the Camp Inquiry, it was evident that two competing interests were at play. First, the personal interest of Justice Robin Camp to remain a justice of the Federal Court of Canada, and second, the public’s interest in having a judiciary that acts with integrity and without discrimination, in which it can have confidence. 

Camp argued he should not be removed from the bench because his conduct was due to a knowledge deficit and ignorance about the social context of sexual assault law; ignorance he argued was not unique but widespread. Focus was placed on Camp’s attempt to educate and remediate himself, factors that it was argued support his remaining on the bench. 

However, putting the focus on Camp alone misses the point entirely. The purpose of an inquiry into judicial conduct is to ensure judicial integrity is maintained and public confidence in the judiciary as a whole is not eroded by improper judicial conduct: Re Therrien at para. 58. In the context of the Camp Inquiry, which involved sexual assault law, the public includes sexual assault survivors — a group that  has historically faced, and continues to face, discrimination and stigmatization by the justice system. The discrimination and stigmatization is compounded by the fact that sexual assault survivors are overwhelmingly comprised of members of marginalized groups in Canadian society.

Camp’s comments and attitude toward the complainant in R. v Wagar, as well as sexual assault laws themselves, were not just “insensitive and inappropriate.” They were the result of prejudiced and biased thinking. Given the unique and exalted role of judges in Canadian society, such overt displays of prejudice and disrespect cannot be tolerated. As stated by the Supreme Court of Canada in Re Therrien, at paras. 109 and 112, a judge occupies “a place apart” in our society and is the “pillar of our entire legal system.” This unique role and privileged position is of fundamental importance and cannot be ignored when considering the appropriateness of judicial conduct. This is why the focus of an inquiry into judicial conduct cannot be solely on the individual judge or the parties that appeared before that judge. Rather, the focus must be on the judiciary as a whole, and the public’s perception of the judiciary in light of the individual judge’s conduct. 

This is precisely why the recognized test for removal of a judge is:

Whether the alleged conduct is so manifestly and profoundly destructive of judicial impartiality, integrity and independence that the confidence of litigants or of the public in its justice system would be undermined, rendering the judge incapable of performing the duties of his office (Moreau-Bérubé v New Brunswick at para. 51).

Thus, the issue the inquiry committee must grapple with is whether the public’s confidence in the justice system has been undermined by Camp’s conduct, such that the public has lost confidence in his ability to perform his duties as a judge, duties that require him to be seen as acting impartially and with integrity.

The Canadian Judicial Council’s Ethical Principles for Judges recognize that “[l]apses and questionable conduct by judges tend to erode [public] confidence . . . Public acceptance of and support for court decisions depends upon public confidence in the integrity and independence of the bench. This, in turn, depends upon the judiciary upholding high standards of conduct.” The principle of integrity requires judges to “strive to conduct themselves with integrity so as to sustain and enhance public confidence in the judiciary“ and conduct themselves so as to be “above reproach in the view of the reasonable, fair minded and informed person.“

The ethical principles not only emphasize that judges must display impartiality, independence and integrity, but also a commitment to equality and non-discrimination. As noted in the commentary to the ethical principles: “[a] judge who, for example, reaches a correct result but engages in stereotyping does so at the expense of the judge’s impartiality, actual or perceived.”

The need to focus on public perception of, and confidence in, the justice system in light of Camp’s conduct is especially important in the context of sexual assault law, which has failed female sexual assault survivors for generations by allowing myths, prejudices and stereotypical thinking relating to sexual assault against women to prevail, a fact that has been acknowledged repeatedly in case law: R. v. Seaboyer ; R. v. Ewanchuk ; R. v. Darrach; R. v. JR; R. v. Ururyar; and R. v. CMG

This context is important as the vast majority of sexual assault victims are women and girls. For example, in 2007, 86 per cent of sexual assault victims were women and girls. In 2012, police-reported data shows more than  90 per cent of the victims of sexual assaults were women

Further, sexual assault has a disproportionate impact on individuals who are marginalized because of discriminatory stereotypes based on characteristics such as race, indigeneity, disability and sexual orientation. In particular, indigenous women tend to experience sexual assault at a higher rate. In 2014, indigenous women recorded a sexual assault rate of 115 incidents per 1,000, much higher than the rate of 35 per 1,000 recorded by non-indigenous women, according to Statistics Canada’s General Social Survey on Victimization, 2014.

Any consideration of Camp’s conduct and its impact on public confidence in the Canadian justice system must include consideration of the historical, legal and social inequalities that have challenged, and continue to challenge, public perceptions of judicial impartiality and integrity in the application of sexual assault law. Thus, if the public whose confidence in, and perception of, the judiciary and judicial impartiality is to be examined, it must include members of the constituency most directly affected by the judicial conduct: sexual assault complainants with diverse socioeconomic and sociocultural characteristics. 

This understanding of the public as including sexual assault survivors is important given the well-documented lack of public confidence in sexual assault law and the justice system responsible for administering it. The result of allowing myths, stereotypes and prejudices to prevail in sexual assault law has led to a fundamental distrust in the criminal justice system by sexual assault survivors. Statistics show that fewer than 10 per cent of sexual assault victims come forward to report the assaults, mainly because they have a lack of confidence in the criminal justice system, as discussed in A Survey of Survivors of Sexual Violence in Three Canadian Cities published by the Department of Justice Canada in 2014. The perception is that participants are not treated fairly by the justice system and are re-victimized by the process and by criminal justice professionals, including judges. The experience of sexual assault complainants of the justice system is apparent in the testimony of the complainant in Ururyar where she describes the resistance she faced from police and the Crown in laying charges after she reported the sexual assault.

Given this context, it is especially important that the inquiry committee be cognizant of the need to restore and promote confidence in the judiciary in this segment of the public. Camp’s conduct perpetuates the common perception among sexual assault survivors that the criminal justice system is still tainted by discriminatory attitudes and that they will not be treated with the dignity, care and respect offered to other victims of crime. 

This continued lack of confidence in the criminal justice system should support the case for censure. It matters not if Camp has now educated himself and acknowledged his biased and prejudiced thinking. What matters is that Camp’s conduct perpetuated sexual stereotypes and discrimination, and failed to respect and promote the principles of equality and impartiality. Given this, it is reasonable to assume that were he to preside over a case in the future the public would have a reasonable apprehension that he would not execute his judicial duties with the objectivity, impartiality and independence that the public is entitled to expect of a judge.

Camp ultimately said it best: “Canadians deserve better of their judges.” Consequently, it must be made clear that this behaviour in Canadian courts cannot be condoned, tolerated or allowed to continue in order to restore public confidence in the judiciary and convey to female sexual assault survivors that they will be treated fairly and without discrimination.

Alison Gray is a litigation partner at Bennett Jones LLP in Calgary and was co-counsel for the Intervenor Coalition, including LEAF, at the Camp Inquiry. Her practice is primarily complex commercial litigation, but she also practices constitutional and aboriginal law. The opinions expressed in this article are those of the author alone.

  • The Full Extent of Judicial Bias

    Chris Budgell
    Among Canadians generally ("the public") relatively few will pay attention to the CJC's deliberations on complaints brought against judges. Those of us who do will tend to have had interaction with the legal system. And my guess is that that interaction will most often have been in civil rather than criminal proceedings.

    For many, if not most, of us it will be no revelation that judges are very frequently ill-prepared, in terms both of knowledge and attitude, to do the job with the level of competence and impartiality we would wish to see. The prejudices are not limited to the ones enumerated in this article.

    I speak from copious personal experience.

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