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Judge Camp and Judicial Competency: the Duties of Appellate Courts

At what point do concerns over the conduct or competency of a lower court judge rise to the level that an appellate court should report that judge to the relevant judicial council? Appellate courts are naturally hesitant to do so, lest they infringe on judicial independence. However, at some point a judge’s conduct may cross the line and compel an appellate court to report them in the name of protecting the integrity of the administration of justice and maintaining public confidence in the same. The Alberta Court of Appeal’s review of the judgment of Judge Robin Camp in R v. Wagar is such a case.

As has been widely reported in the media, the Canadian Judicial Council is now investigating Justice Robin Camp of the Federal Court of Canada for his conduct in a case while he was a judge of the Provincial Court of Alberta. The Federal Court of Canada has taken the highly unusual step of issuing a statement regarding the investigation which can only be taken as raising questions regarding Justice Camp’s competency and suitability to continue serving as a judge of the Federal Court of Canada. Those questions were raised directly in the complaint to the Canadian Judicial Council made by University of Calgary Professors Alice Woolley and Jennifer Koshan and Dalhousie Professors Elaine Craig and Jocelyn Downie. Their detailed 11 page single-spaced letter raises serious questions about Justice Camp’s conduct in R v Wagar (Docket 130288731P1) which was overturned on appeal by the Alberta Court of Appeal (2015 ABCA 327).

The unanimous decision of the three-judge panel of Alberta’s highest court is a disappointing five paragraphs. The key paragraph provides:

Having read the Crown’s factum, portions of the trial transcript and having heard Crown counsel’s arguments, we are satisfied that the trial judge’s comments 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 and restrictions on evidence of the complainant’s sexual activity imposed by section 276 of the Criminal Code. We are also persuaded that sexual stereotypes and stereotypical myths, which have long since been discredited, may have found their way into the trial judge’s judgment. There were also instances where the trial judge misapprehended the evidence.

This short paragraph is explosive.

This unanimous panel of the Alberta Court of Appeal raises serious questions about the basic competency of a member of a court under its supervision. The three judges of appeal stated that Judge Camp’s comments “throughout the proceedings and in his reasons” gave rise to doubts about his understanding of the law governing sexual assaults”. Not only this, but the appellate judges further stated that Judge Camp did not understand the meaning of consent and section 276 of the Criminal Code known familiarly as the “rape shield” provision. And there’s more: the Alberta Court of Appeal was also persuaded that myths and stereotypes about sexual activity “may have found their way” into Judge Camp’s judgment. Almost as an afterthought, the Court of Appeal states that Judge Camp also misapprehended the evidence.

In short, according to the Alberta Court of Appeal, Judge Camp displayed a lack of basic competency about criminal law in regards to sexual assault and a disturbing attitudinal bias. In such circumstances, it is mystifying that the judges of the Court of Appeal did not write detailed reasons in this case. It would seem incumbent upon them to do so where a judge on a court under their supervision displayed such a basic lack of competency. But by the time the Alberta Court of Appeal had released its decision, Judge Camp was no longer a member of the Provincial Court of Alberta; Minister of Justice Peter MacKay had appointed Judge Camp to the Federal Court at the end of June 2015 in a mass of pre-election judicial appointments.

So when the Alberta Court of Appeal released its decision in October 2015, Judge Camp was no longer Alberta’s problem; however, his conduct impugns the integrity of the entire Alberta judicial system and the Canadian administration of justice. The Alberta Court of Appeal never mentioned Judge Camp by name in its five paragraphs. Judge Camp seemed to be out of sight (moved to the Federal Court in Ottawa) and therefore out of mind. The highest court of Alberta erred in failing to appreciate and address the breadth and the depth of the problems raised by Judge Camp’s decision.

One wonders whether the judges of the Alberta Court of Appeal sent a copy of their judgment to the Canadian Judicial Council. If they did not, they certainly should have.

Comments

  1. Perhaps there would be less call for “wondering” about the possibility of a complaint having been filed if the complaints went to an agency that understood its mandate to be serving the public interest and the rule of law.

    There’s no mystery about why the CJC isn’t delivering on that mandate. Judges judging judges doesn’t work! This reality has been understood for a very long time, but instead of acknowledging and dealing with it, the legal establishment chooses to periodically get upset about one specific case. The protest quickly dissipates once the Council has disposed of the complaint.

    I want to note one factor that is different this time. As I understand it the complaint is currently at what the CJC is now calling Stage 2 “Review by one member”. If that member decides that it must go to Stage 3 “Review by 5 members” the chair of that panel must ensure that the panel includes a “lay person”. This requirement is something the CJC added this summer. I knew when this idea was first proposed that it was going to be a problem. There’s no protocol specified for how this person is to be found or engaged.

    Whoever is deliberating on the complaint right now therefore has an obvious incentive to not send it on to Stage 3.

    Another, and I would say notably insightful, perspective on this matter has been posted today on her blog by Professor Julie Macfarlane: http://representingyourselfcanada.com/2015/12/08/public-confidence-in-canadian-justice-a-rough-week/

  2. Very good analysis.

    Seems that a pdf copy of the factum of the appellant is available at the following website – link to factum at the 5th paragraph (found the site yesterday):

    http://ablawg.ca/2015/11/02/judging-sexual-assault-cases-free-of-myths-and-stereotypes/

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