Beyond the Justice Camp Debacle: When the Public Asks Judges to be AccountableNSRLP
Mr Justice Camp faces widespread criticism for his comments to a sexual assault victim (while sitting in the Alberta Provincial Court) about the need to keep her knees together and deploy other body contortions in order to escape her assailant – whom he then acquitted (this decision was overturned on appeal).
The Justice Camp story has been prominent in the news for the last 10 days. It has led to a hasty announcement that Justice Camp would be removed from sexual assault cases in the Federal Court (where he was promoted earlier this year).
While we await a final outcome, the Justice Camp story highlights the need for a process of accountability to ensure that these kinds of appalling remarks are not uttered with impunity in our courtrooms by any judges.
I applaud the actions of my colleagues at Dalhousie University and University of Calgary in bringing forward and making public a complaint against Justice Camp to the Canadian Judicial Council (CJC).
But there are some wider lessons here.
Law professors have powers and privileges that other citizen-complaints – represented litigants or self-represented litigants – do not possess. Including both their overall credibility and their access to media attention when they released their CJC complaint to the press.
Citizen-complainants write to the CJC all the time – in excess of 500 complaints a year.
We have no way of knowing how high this number would be if the public felt that there was a real chance that their complaint would be seriously considered by a judicial oversight body composed of judges– or if it included those who forgo a formal complaint because of their concern that it may jeopardize their ongoing legal matter.
And then, there is the problem of what happens to the 500 complaints…
- One third of these are dismissed as crossing the line between “conduct” and “outcome”. These receive “mandate letters” in reply, meaning “we cannot help you”.
Law professors understand that the CJC cannot review judicial decisions, or investigate any complaints that imply criticism of decision-making. Does the public know this?
And even those people who are aware of this (sometimes fine) distinction face the difficulty of writing a complaint which avoids any reference to the impact of the conduct being complained about – for example, rudeness, dismissiveness, or the appearance of bias – on judicial decision-making.
Sometimes those types of behavior get in the way of a judge hearing a case fully and taking everyone’s point of view seriously.
- A further one third of the complaints received are deemed either “irrational”, or classified as unnecessary to respond to.
This leaves one third of the original 500 or so complaints that will be investigated by a Review Panel of judges. What happens to them?
- Just 2 of 176 complaints investigated from 2011 – 2014 were upheld (about 1%)
The current complaints system at the Canadian Judicial Council is without credibility. The CJC acts as a club to protect judges from complaints, not as an investigative body.
Public confidence in the judiciary is chronically damaged as a result.
Of course, we need our judges to be independent and they should not have to justify their decisions to the CJC. But that should not mean that they are not accountable for how they speak to and treat those appearing before them in court.
The core of most of the (frequent) complaints I hear about judges from litigants are not about judges making particular decisions. And they are not the appalling misogyny of comments like those made by Justice Camp. Most are complaints about a lack of basic courtesy – rudeness, heavy-handedness, what feels like bullying behaviour, and insulting attitudes.
I know that those judges who treat everyone in their courtroom with respect, patience and professionalism are as appalled as I am at the behavior of some of their colleagues.
I usually advise litigants not to waste their time bringing a complaint to the CJC. They will invest a lot of effort, will wait months for a response (did I mention that the average time the CJC takes to respond to correspondence – including my own – is 6 months?) and will almost certainly – given the current rate of success for complaints – be dissatisfied with the result.
Three suggestions for the CJC
- The CJC needs public representatives who participate in the oversight of judicial conduct.
- The CJC needs a transparent and user-friendly process that takes every complaint seriously.
- The CJC needs to commit to real accountability, which aims to enhance trust between the public and the judiciary, not to damage it yet further.
 I reviewed 2011-2014 decisions as reported on the CJC website last year (the website has since changed and these decisions have been replaced with a “sample”).