On November 29, 2016, the Canadian Judicial Council (CJC) made the recommendation women across Canada were hoping for. They recommended that Justice Robin Camp, the Alberta judge who acquitted a rapist in 2015 after making comments to the victim during the trial such as “Why couldn’t you just keep your knees together?” be removed from office. In their inquiry report, the CJC found that Camp had made comments that suggested an aversion to laws enacted to protect the vulnerable and promote equality, and that the damage he’d done to people’s faith in our judicial system could not be fixed by sensitivity training and promises to reform after the fact.
This article, however, is not about Robin Camp. There is no disputing that Camp’s conduct during this trial revealed him to be wholly unfit to be a judge in a society where gender equality is constitutionally guaranteed and that a recommendation for removal from the bench is him getting off light in the eyes of many victims of sexual assault.
This article is about the judiciary, the Canadian Judicial Council, and the process by which Canadians hold federal judges accountable for their behavior on the bench.
Removing a Judge
One of the tenets of democracy is the existence of an independent judiciary. For the judicial system to work it must act independently of the influences of the executive and legislative branches of government, as embodied in Canada by the Prime Minister and his cabinet and the House of Commons and Senate.
The way our founders attempted to ensure this independence was by putting rules in our constitution that require that judges be appointed not elected, and once appointed, they get to keep their position “on good behavior” until the age of retirement.
Before the creation of the Canadian Judicial Council in 1971, the only way to get a federally appointed judge removed from the bench was to have the government recommend his removal to the House of Commons and Senate. That all changed in the late sixties with the Leo Landreville scandal.
Leo Landreville was a former Sudbury mayor who’d been appointed to the Supreme Court of Ontario. While he was mayor, he got involved in some shady stock dealings that came to light while he was a judge and led to criminal charges including corruption. The ensuing scandal prompted Lester B. Pearson to recommend his removal from the bench to Parliament in 1967, and was one of the events to spark the creation of the CJC.
The Canadian Judicial Council
The Canadian Judicial Council was created with the goal of promoting efficiency, uniformity, and accountability in Canada’s Judicial System. It consists of thirty-nine members and is led by the Chief Justice of Canada’s Supreme Court, currently the Right Honourable Beverly McLachlin. The Council meets twice a year and while their primary responsibility is to set policies and create tools that allow the judicial system to work better, it has the added task of investigating complaints against judges.
The Council can only investigate complaints against federally appointed judges. They cannot investigate or overturn a judge’s decision in a case. To get a judge’s decision overturned, you have to go through the appeals courts. What the CJC can do is investigate a judge’s conduct, but to get them to do that, you have to follow the complaint process.
As per the Judges Act, the CJC must start an inquiry of a federal judge upon request by the federal justice minister or the attorney general of a given province. The Council can also choose to investigate any other complaints or allegations made against a judge. In the case of Robin Camp, for example, the complaint was initially made by four law professors.
Unlike many other government applications, a complaint to the CJC does not require specific forms, there is no application fee and no deadline. All you do is submit a complaint in writing about a named federally-appointed judge about their conduct and not their decision(s) via snail mail.
The Canadian Judicial Council then reviews the complaint and where necessary, conducts an inquiry and releases a report. In the report they can recommend that the judge remain on the bench, be removed from the bench, be granted paid leave, or if the judge resigns before the age of mandatory retirement, the Council can recommend they continue to get an annuity.
If the Council recommends the judge’s removal, the Federal government can then go to the House of Commons and Senate within fifteen days of the removal recommendation and publicly remove the person from office. Federal judges can only be removed for the following reasons:
- Age or infirmity
- Having been guilty of misconduct
- Having failed in the due execution of that office
- Having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office
Justice Camp was recommended for removal from the bench for misconduct and the fact that it happened during a rape trial amplified the magnitude of his actions. Rape trials are widely and justifiably believed to be tainted by bias and prejudice so the appearance of impartiality and fairness in the presiding judge is extremely important.
A judge who seems to favor one side over the other from the get-go damages society’s faith in the fairness of our judicial system, and a lack of faith in the law and the people who interpret and enforce it will ultimately lead to vigilantism and anarchy.
The Canadian Judicial Council is an important check on federal judges who may take for granted that their jobs are secure in order to ensure their independence. It’s important but it’s not perfect.
Since its creation only four judges have been recommended for removal by the Council in recognition that judges need freedom to criticize the law, talk to witnesses and lawyers, and conduct proceedings in order to make sure justice is served.
The full story of the Canadian Judicial Council has yet to be told, but I suspect there are some people who have long been considering taking a shot at doing that.
The full story would include how the CJC was able to do something crucial that was, and remains to this day, contrary to the mandate it receives from the Judges Act. The Act says, in section 61(3), “The Council may make by-laws”. The record I’ve reviewed doesn’t go back to 1971, but it appears there was a single set of by-laws until, following some deliberations initiated by Beverley McLachlin, that single set was replaced by what they then chose to call their Complaints Procedures and a set of provisions that continued to be designated “by-laws”. This change was made effective at the beginning of 2003.
An innovation incorporated into the Complaints Procedures (in what was then section 2.2) was what I call a gatekeeper device. The Executive Director – who at that time was Jeannie Thomas – was authorized to decline to “open a file” on receipt of anything that the Executive Director deemed to be “clearly irrational” or “an abuse of process”. There was evidently no expectation that Ms. Thomas would assume this role. One year later she retired and Norman Sabourin (who it might be worth noting previously had a role with the RCMP) became the new Executive Director. The notice of that change is here:
It appears that no one outside the Council took note of this innovative development. Had they done so they might have also noted how it fits the definition of an unauthorized sub-delegation of a judicial (or quasi-judicial) function. The Latin / Legalese is delegatus non potest delegare.
I learned about what was then section 2.2 and then figured out that it is ultra vires the Judges Act after I received a letter from Mr. Sabourin expressly citing section 2.2. (In 2015 the Procedures were revised and the gatekeeper device is now found in certain other sections.)
The current Minister of Justice is among those I’ve informed about this issue. I think she and the Council of Judges know they have a problem and are trying to figure out how to deal with it without acknowledging that the Chief Justice and her CJC colleagues contravened the Judges Act. What the CJC has recommended is that Parliament should amend the Judges Act so that it authorizes what they put in place in 2003.
[…] November 2016, Judge Robin Camp was recommended for removal from the bench by the Canadian Judicial Council following an inquiry into his conduct during a rape trial. Though […]