Alice Woolley is a professor of law in the Faculty of Law, University of Calgary, and one of the four original complainants to the Canadian Judicial Council.
Last week, Justice Robin Camp resigned from the Federal Court following a recommendation by the majority of the Canadian Judicial Council that he be removed from office. He is only the third federally appointed judge to resign after such a recommendation, and his case is certainly the highest-profile, in part because of its most jarring sound bite: "Why couldn't you just keep your knees together?"
The notoriety of the Camp case makes it feel like it should mean something important – for our approach to judicial regulation, or for how we try sexual assault cases. At the same time, however, the case is unusual. Judges rarely resign for misconduct or say the sorts of things Justice Camp said. That makes its importance uncertain, and also creates the risk of the case being seen as significant in a way that it should not be. For that reason, I think it is necessary to highlight what the case does not mean or, more accurately, what it should not mean for our legal system going forward.
Most importantly, the decision should not make us intolerant of judicial error, or lead us to see any judicial mistake as judicial misconduct. Judges make mistakes. They misunderstand or misstate the law set out in prior cases. They admit evidence they ought not to have admitted. They apply the law incorrectly to the facts. These mistakes can be serious. They can impose costs on parties. They can be painful for witnesses. Mistakes must be corrected. But that is why we have courts of appeal. Our legal system expects and corrects for judicial error.
To rise to the level of misconduct, the judge must have gone beyond mere error. He must have done something that undermines the very function of the judiciary; the judge must have acted in a way that demonstrates a lack of commitment to fairness and impartiality, and that undermines public confidence in the fair administration of justice. A judicial mistake means the judge is human; it does not mean that he has violated the duties of his office.
The Judicial Council's recommendation should also not be understood as suggesting that a judge who commits misconduct can never remedy that misconduct through remorse and rehabilitation. By its very definition, misconduct is always serious – that's what distinguishes it from a mere mistake. But we have to be open to the possibility that some instances of misconduct, even if serious, can be remedied, that sometimes remorse and rehabilitation will be enough to restore public confidence in the administration of justice. Otherwise our system of judicial regulation will abandon the very fairness and empathy that the Judicial Council sought to restore by recommending Justice Camp's removal.
I also do not think the Judicial Council's recommendation means that we need to remove every judge who engages in misconduct from office.
Currently the only remedies available for federally appointed judges who commit misconduct are censure or removal. In a recent consultation document, the Canadian Judicial Council suggested that the Council be permitted to impose sanctions or remedial measures short of removal. I agree with the Council. Judges can commit misconduct less serious than that committed by Justice Camp, but serious enough to suggest that more than censure would be appropriate. The current limitation unduly restricts the ability of the Judicial Council to address that type of judicial misconduct, to set standards, and to give meaningful guidance to judges about acceptable behaviour on the bench.
Finally, Justice Camp's misconduct shows how we sometimes fail to try sexual assault cases fairly and empathetically. But his misconduct does not mean that we ought to abandon the fundamental principles that underlie criminal law.
We must do better in how we treat sexual assault complainants at every stage of the legal process. But we must also continue to protect the presumption of innocence and remember that a criminal trial seeks to determine whether the accused is guilty. The job of a judge in a criminal trial is to decide whether the evidence shows "beyond a reasonable doubt" that the accused committed the offence. Nothing about Justice Camp's misconduct, or the Judicial Council's recommendation, changes that core obligation.