More below • Four legal cases that got ’Campbelled’
He was once Canada’s youngest judge and he stayed until he became the longest-serving, his name having long since been turned into a verb, and not in a nice way.
To be “Campbelled” was to be on the receiving end of a liberal smackdown. It was to be a federal immigration officer or a member of the Immigration and Refugee Board and come up against Federal Court Justice Douglas Campbell and found not sufficiently sympathetic to the claimant.
Justice Campbell was an idealist and an outlier. Alone during his 25 years on the Federal Court, he almost always ruled in favour of refugees or immigrants seeking to stay in Canada against the opposition of bureaucrats or the immigration board.
His inner fire does not seem to have dimmed over his 46-year career, which ended in late August with mandatory retirement at age 75.
In his 40s, as a southern B.C. judge with responsibility also for the northern part of the province, he would drive, rather than fly, the 3,000-kilometre round trip, accompanied by a court official, because he felt he needed to know the land to understand the people. In his early 60s, as an international educator of judges, he donned a bulletproof vest to walk alongside a Palestinian man ordered to exit the judge’s diplomatic vehicle and go on foot to an Israeli checkpoint building. In his late 60s, on the Federal Court, he ruled that when illegal immigrants or failed refugee claimants ask to stay in Canada on “humanitarian and compassionate” grounds, judges actually need to use their “heart” as a matter of law.
After Canada’s longest career on the bench, which included a quarter-century as a leader in judicial education, in countries as far off as India, South Africa, China and Jamaica, he spoke at length with The Globe and Mail, sharing his deep convictions about what makes a good judge.
Empathy is the judge’s true job, he said.
“Your skin is black and mine is white and what does that mean? Absolutely nothing, except the history of suffering that Black people have had, and you must not be part of it.”
Education programs for judges are not primarily about the facts, he says. “We’re talking about the reality of what it would be like to be that person who suffered. That’s where you have to be because that’s where the empathy is. And once you get to them at that level, you don’t have to do much more.
“They will understand it the way they understand themselves.”
An electrician’s son born on Aug. 27, 1945, in Calgary, Justice Campbell joined the bench in British Columbia in the days when lay magistrates – judges without a legal background – dominated the Provincial Court. An NDP government had just replaced scores of them with trained lawyers.
He had just three years’ experience as a practising lawyer when he was appointed to the B.C. Provincial Court on Sept. 5, 1974. The headline in a local paper: “At 29, a baby on the bench.” He was barely past his birthday. (Some published reports have mentioned Supreme Court Justice Rosalie Abella as having been the youngest. But she was just shy of her 30th birthday when she was appointed a judge in Ontario in 1976.)
He began his judicial career in a time of great legal and social change. In B.C.’s juvenile courts, probation officers would explain to the magistrates the wrongs a young person had done; and the magistrates, without a trial, would dispatch the youth to custody if the officers recommended it, Justice Campbell recalls. Outside of Vancouver and Victoria, where trained lawyers and high-calibre lay magistrates sat, the quality of justice was “just horrible,” he says. “I had these kids telling me, ‘This is not true, this didn’t happen,’ or ‘They’re embellishing it.’ So [as a new judge], I started pleading not guilty on behalf of those children. This was new; we actually had to hold a trial. There were a lot of ‘not guilties.’”
His zeal for reform, especially on behalf of children and young people, got him noticed. Ever since he’d been an articling student, he had done work for the Children’s Aid Society of Vancouver, representing children in trouble with the law. That exposure brought him an advisory job on a royal commission chaired by jurist Thomas Berger. Laurie Brahan, the Provincial Court’s Chief Judge, was also an adviser and prevailed on the province’s justice minister, Alex Macdonald, to put the idealistic, driven young lawyer on his court.
“Let’s put it this way – he was willing to step out in front where he might be shot at,” Mr. Berger says now of Justice Campbell in those early days as a lawyer and judge. (Mr. Berger was another outlier; he quit the bench in 1983 after writing a commentary in The Globe criticizing the absence of an Indigenous and treaty rights clause in the Charter of Rights and Freedoms. So was Mr. Macdonald, who wrote a book critical of the justice system.)
In 1988, now a veteran judge, though still in his early 40s, he turned his mind to what would become a lifelong passion – training his fellow judges to recognize barriers to equal justice. He became director of the Western Judicial Education Centre, a project of the Canadian Association of Provincial Court Judges. It was a half-time job, while he sat on the bench the other half. There he pushed social-context education, then a new concept, bringing in community members, elders and academics to speak to judges about myths, stereotypes and the realities of life for women and Indigenous peoples.
Shortly after he turned 50, in 1995, the Liberal government of Jean Chrétien appointed him to the Federal Court in Ottawa. (He had by this time left the judicial-education job.) The Federal Court decides cases such as Indigenous, national security and immigration matters that are in the federal domain. And he was appalled to find that the court was divided into political camps.
“It was like Mars, it was like nowhere I’d ever been before. There were the Liberals and the Conservatives and that was almost the way it ran.” The judges would joke about it at the time, he said, but he added that for the past few years, there has been a greater diversity of backgrounds and views among new judges.
A 2012 study by Osgoode Law Professor Sean Rehaag backs Justice Campbell up. The study, covering the years from 2005 to 2010, found that judges appointed by Liberal governments granted judicial review to failed refugee claimants in 17 per cent of cases; judges appointed by Conservative or Progressive Conservative governments granted a review in 11 per cent. (Failed claimants do not have a right to a court review; they must seek the court’s permission to hear their case. The standard is whether they have a “fairly arguable” case.)
That study, and a follow-up by Prof. Rehaag, showed just what an outlier Justice Campbell was. In an astonishing 71 of 74 cases (95.9 per cent) between 2008 and 2011, he granted failed claimants a court hearing. The next highest rate among judges was just 31 per cent, and the lowest was a rock-bottom 1.5 per cent. It was the Federal Court’s dirty little secret – though not so secret after Prof. Rehaag’s study. The luck of the draw was more important in refugee cases than the facts and the law.
And when Justice Campbell heard the actual cases, the claimant won the right to a new determination of their case 89.4 per cent of the time (84 of 94 times), the study showed. He never changed. From 2013 to 2016, he granted the claimant a victory in 95 per cent of the cases (39 of 41 times).
“Refugee adjudication by definition involves people who are saying if they are sent back to their country of origin, they will be persecuted, tortured or even killed,” Prof. Rehaag said in an interview. And in that high-stakes process, Justice Campbell really did “Campbell” refugee board members, as he stood in the way of deportation.
Justice Campbell laughed when a reporter mentioned the use of his name as a verb; he had heard that before. The difference between him and the other judges, he said, is that some of the others are more willing to accept errors by administrative bodies.
“I hate to say it but it’s true,” Justice Campbell says. “Some judges will tolerate reviewable errors because they just don’t think they’re worthy of comment.” His own view: “The people who write these decisions have to be schooled enough that they can produce a credible decision, which is supported by law and fact.”
Sometimes he wore his heart on his sleeve. Or, as he put it in a 2012 ruling, some decisions involving foreign nationals seeking permanent resident status in Canada must involve the heart.
“Applying compassion requires an empathetic approach,” he wrote in 2011 in the case of Tigist Damte, a failed refugee claimant from Ethiopia who had twice been denied permission by government bureaucrats to stay in the country on humanitarian and compassionate grounds.
“This approach is achieved by a decision-maker stepping into the shoes of an applicant and asking the question: ‘How would I feel if I were her or him?’ In coming to the answer, the decision-maker’s heart, as well as analytical mind, must be engaged.”
Ultimately, Canada permitted Ms. Damte to stay.
Robin Camp became a colleague on the Federal Court in 2015, a year after he’d asked a sexual-assault complainant why she hadn’t kept her “knees together.” (He’d been a judge on the Alberta Provincial Court at the time.) The knees-together ruling had not yet come to public attention. When it did, and a disciplinary body recommended his dismissal, he resigned.
“He came on the bench without a clue,” Justice Campbell says of his former colleague, referring to when Mr. Camp joined the Provincial Court. Mr. Camp, reached by e-mail, declined to comment.
He believes Mr. Camp was not an anomaly; some judges had similar views, even if they didn’t voice them.
“What he was thinking would be in the minds of many.” Interest from judges in gender-equity training spiked after the Camp episode, he said. “It was confidential, and they would ask questions they’d never asked before.” (He was not involved in the training but spoke to a senior judge who was.)
Eventually, the Liberal government proposed a bill (still being considered by Parliament) requiring that candidates for the federal bench promise to take a course in sexual-assault law if they become judges. The Canadian Judicial Council, chaired by Supreme Court Chief Justice Richard Wagner, opposed making the course mandatory, saying that would impinge on judges’ independence.
“That’s ridiculous,” Justice Campbell says, of the judicial council’s position.
“You’re just an open vessel, people pour stuff into your head every single minute of the day. Why are we going to be exclusive in what we pour into your head?” He says the courses tell judges: “‘This is the reality of violence against women. It’s everywhere, every day in this world, and in particular for us in Canada.’”
Done properly, social-context education can transform a judge, says Justice Campbell, who won the Canadian Bar Association’s Touchstone Award in 2018 for promotion of equality in the law. “I could tell you a lot of stories where a judge just turns from one person to another, with a snap of your fingers.”
The story he does tell is from a conference in New Delhi in the late 1990s, where senior judges convened from India, Pakistan, Bangladesh, Nepal and Sri Lanka. The problem their courts faced was that victims of sexual assault were afraid to come forward, and if they did, testified so poorly that their assailants were acquitted. Turning down the lights, he asked the judges to imagine an anniversary with their spouse, a beautiful dinner, a chat in their garden, lovemaking. The lights went on. Now turn to the person next to you, he said, and describe the lovemaking.
The judges began to shout at him that they would do no such thing, that he was ruining their education program.
He replied that if they thought it was difficult for them to describe a lovely evening, what was it like for a woman who had been raped? In that moment, at least in Justice Campbell’s view, a judge who had been among his country’s most conservative transformed, and ultimately became known as an ardent advocate for women’s rights.
A few years later, Justice Campbell was part of a judicial education project in Gaza and the West Bank. The project focused on “human dignity” as a legal concept. It was November, 2007, and the Canadian diplomatic vehicle he was in was stopped at an Israeli military checkpoint; a Palestinian man, Ra’id Malki, who was working for a Canadian diplomatic office in Ramallah, was ordered to get out and walk hundreds of metres through a flat, barren area to the checkpoint building. Mr. Malki was terrified.
Justice Campbell put on a bulletproof vest, jumped out of the car and walked alongside Mr. Malki, also wearing a vest.
“I learned that day that human dignity is in every step you take in life,” Mr. Malki said in an e-mail to The Globe.
Justice Campbell’s mantra for his fellow judges: “Get to know the person.”
If judges took more time during sentencing, they could reduce the disproportionate numbers of Indigenous and Black people incarcerated, he says.
“Cleanse your mind of your stereotypical ideas and your prejudice.” To which, he says, judges may reply, or think, “I don’t have any prejudice.”
“Well, then, you’re the only person on the planet, my friend.”
Before judges sentence a person, they receive a report on that person’s background, challenges and prospects for rehabilitation, but they should go beyond those reports, he said. “You’ve got to spend a half an hour or an hour and ask some questions. You’ve got to have the person speak to you” in open court. Adjourn the sentencing for three months if possible, he says, and give the individual a chance, under supervision, to demonstrate that they’re on the right path.
Married for 52 years, the father of two daughters and grandfather of two granddaughters is uncertain what he will do next. But his sense of urgency remains.
“If you don’t believe, you’re useless in this job. You have to believe that there’s hope. You have to believe in the worth of the individual you’re dealing with.”
Four legal cases that got ‘Campbelled’
Refugee law has nothing like “Blackstone’s ratio,” the 18th-century idea from criminal law that 10 guilty persons should go free rather than one innocent person be convicted. Instead, it is pulled between two views, says Ryerson University law professor Hilary Evans Cameron, who appeared before Federal Court Justice Douglas Campbell as a lawyer, and wrote about him in her 2018 book, Refugee Law’s Fact-Finding Crisis: Truth, Risk, and the Wrong Mistake.
One view is that refugee claimants are like anyone else who has gone before a tribunal (such as the Immigration and Refugee Board): The burden is on them to prove their case when they go to court to say the tribunal got it wrong. The other view is that, because they could face persecution or death if they lose, they deserve the benefit of the doubt, much as defendants do in criminal law. Justice Campbell was a “standard bearer” for that second approach – giving refugee claimants the benefit of the doubt, Prof. Evans said.
In the cases below, foreign nationals facing deportation had asked government officials for permission to stay on “humanitarian and compassionate grounds,” a category recognized in the Immigration and Refugee Protection Act. According to a government website, these grounds apply to people with exceptional cases, and officials consider how settled the person is in Canada; general family ties to Canada; the best interests of any children involved; and what could happen to the individual if deported.
The officials denied such permission. When the individuals came before Justice Campbell in a process known as judicial review, he threw out their rulings, saying they lacked heart. His frequent rejections in circumstances like these became known as being “Campbelled.”
Aleksejs Vitaly Kolosovs
The case: The Russian-born Latvian was a grandfather of four Canadian-born children, all under 10. His son, the children’s father, had been deported to Latvia. He was the only father figure in the children’s lives. He came to St. John’s in 1997 and on his scheduled deportation date in 2005 went into sanctuary at a local church, where he was still living three years later.
Government visa officer’s view: There is “no indication on file that this situation would mean unusual and undeserved or disproportionate hardship.”
Justice Campbell’s 2008 ruling: “In my opinion, the glib use of an undue hardship standard in the present case certainly reflects a lack of sensitivity to each of the children.” The Supreme Court cited this ruling in its 2015 decision in Kanthasamy v. Canada, about a 16-year-old Tamil from Sri Lanka whose refugee claim had been rejected.
Result: Decision on Mr. Kolosovs was ruled unreasonable and sent back to be reassessed by another visa officer.
The case: The Chinese national, who came to Toronto as a foreign student in 2003, had been ruled inadmissible because of a 2004 marriage that officials believed was a sham. She got divorced and went on to a common-law relationship with another man, which produced two children. The inadmissibility decision was upheld by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board.
IAD member’s view: “The family impact [of deportation], in my view, does not override the mitigating factors in this appeal.”
Justice Campbell’s 2017 ruling: “The last comment in the quotation is evidence of a closed mind. There is no question that the lives in the hands of the Member did not receive a shred of compassion.”
The result: The matter was referred back for reassessment by a different decision-maker. She is still in Canada; the case is still unresolved.
Maria Nivea Salazar Pimenta
The case: Years earlier, the former Venezuelan had lost her 21-year-old son to bone cancer. A psychologist reported that she needed to be close to her other son, a Canadian. She had come to Toronto in 2008 to see him.
Immigration officer’s view: “Regardless of where the applicant resides she cannot escape the fact that her son passed away in 1999.”
Justice Campbell’s 2013 ruling: “In my opinion these statements disclose no understanding of the Applicant’s reality, and no humanitarian compassion whatsoever.”
The result: The decision was set aside and referred back for reconsideration to a different citizenship and immigration officer.
Shirley-Ann Monica Dowers
The case: A resident of St. Vincent, Ms. Dowers came to Canada in 1999 to assist an aunt with child care. She held jobs, supported herself and obtained a business management diploma by correspondence, but did not seek work permits.
Immigration officer’s view: “I note that the applicant has never held a work permit authorization her [sic] employment in Canada.”
Justice Campbell’s 2017 ruling: “A situation such as the Applicant’s, where a person comes to Canada and stays without adhering to the immigration laws, but, nevertheless, succeeds to be a positive, productive, and valuable member of society must be given careful attention. Section 25 [the humanitarian and compassionate grounds section] has no purpose if that person is easily condemned for her or his immigration history.”
Result: Matter referred back to another immigration officer for reassessment.
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