Robin Camp is a federal court judge who, following a series of offensive remarks made in a sexual assault trial, was the subject of a complaint to the Canadian Judicial Council (CJC) and a subsequent inquiry. In November, the CJC recommended his removal from the Bench.
In their lengthy brief submitted on January 6th asking, once again (having been rejected in December) for an opportunity to make further (to the week-long hearing in September) oral submissions, Robin Camp’s three lawyers argue that they know what is required to ensure public confidence in the judiciary. Apparently it does not involve removing Camp from the Bench. Specifically, they assert that:
- His removal as a judge is not necessary to preserve public confidence because his misconduct was the product of ignorance, not animus (and the “knowledge deficit” now stands corrected).
- The informed public’s confidence is best preserved through censure, education and rehabilitation, not removal.
A first glance at the brief’s arguments gives the impression that Camp and his lawyers paid a great deal of attention to what the public thinks about the question of judicial integrity both generally, and in relation to Robin Camp’s record (the words “public confidence” appear 24 times in the brief, and the word “public” a further 30 times).
Intrigued, I took a more careful look at their arguments.
Argument 1: Camp’s removal as a judge is not necessary to maintain public confidence because his misconduct was the product of ignorance, not animus (and he has now corrected his “knowledge deficit”).
Camp’s argument is that the biases and prejudices he displayed – for example: telling the victim in a sexual assault trial that she should have just kept her knees together; referring to her numerous times at trial and again at the CJC inquiry as “the accused” – were unconscious, not intentional or “willful”. His insulting and sexist comments – including remarks about the evolution of sexual assault law in Canada which he dismissed as a product of “contemporary thinking” – were the result of a lack of understanding, and not motivated by a desire to denigrate any group (in this case, women).
In addition, the brief makes the argument over and over that Camp has been a “willing student” in numerous private coaching and rehabilitation sessions with leading members of the legal establishment (and also “remorseful”, as one might expect from someone who has so much at stake personally).
I am unaware of any evidence showing that unconscious prejudice and ignorance, vocalized on numerous occasions by a judicial officer, does not damage public confidence simply because it was not intentionally derogatory.
I challenge you to ask your next-door neighbor, carpooling companion or grocery store cashier if they can figure out what (i) this distinction means, and (ii) whether it makes any difference to their confidence (or lack of it) in a judicial officer?
Perhaps all this might feel tangentially relevant if we were talking about a 12-year old boy who made a sexist comment in class? But we are talking about a criminal court judge, appointed by the federal government – at a public salary of $310,000 – whose job description includes determining the outcome of complex criminal cases including sexual assaults and rapes.
Who knows but Camp’s psychoanalyst whether his remarks were intentional, or the result of unconscious biases? The impact on the integrity of the criminal justice system is exactly the same either way. Knowledge and understanding of the dynamics of rape and sexual assault is central to a criminal court judge’s role.
Argument 2: The informed public’s confidence in its judges is best preserved through judicial censure, education and rehabilitation, not removal.
By this point, I was starting to feel a little less convinced after that first argument that this brief was written with a grounded knowledge of public opinion, or public feelings about the judiciary and the justice system – or if, in fact, Camp or any of his advocates have ever bothered to ask any member of the public (aka “the great unwashed”) just what they think about this case.
But Camp’s team go on to explain that they don’t, of course, need to actually talk to any members of the public – instead they can rely on the fictional informed person test!
Under the Judges Act, the appropriateness of removing a judge is to be assessed from the “standpoint of what an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude.” (from the Matlow case).
Just to make it clear: this “informed person” is not a participant in the judicial inquiry; information collected from such “persons” are not presented as part of the inquiry; the perspective of the “informed person” is not based on any empirical data; and, most importantly, this “person” does not exist. A bunch of judges in another case made him or her up.
But this detail doesn’t stop Robin Camp’s lawyers advancing what this fictional “person” would “think” in the case of Robin Camp. Apparently, the “informed person” favours the progress made by institutional change over the “quick fix” of removal (but wait, doesn’t that require accountability?).
Sounds like Robin Camp’s lawyers actually met and interviewed the “informed person” him or herself! What a scoop!
They continue: “she is not influenced by poorly-informed or short-term public outrage. She is sensitive to the fact that recommending the removal of a rehabilitated judge sends the wrong message – that rehabilitation and education are unimportant.”
But remember, no such person exists. Some judges made her up. Now some lawyers are making up what she thinks (and we accuse SRLs of being prone to delusional fantasies?).
Pivoting towards a warning of pitchforks
If by this point in their brief – slightly over halfway through – Camp is not persuading you that he and his team have their finger on the pulse of public opinion, they make a quick pivot to another tack at page 15.
Deftly relabeling negative public opinion as “public outrage” and then “mob justice”, the brief raises the specter of pitchforks. Negative public opinion is reframed as “organized attacks on the judiciary” which have a “chilling effect”.
One final argument from the Camp brief
Also worthy of note for its breathtaking audacity is the brief’s argument (at page 14) that because other judges also hold sexist views, removing Robin Camp will not be the end of the problem. So, why bother removing him?
Think I’m joking? Here is the quote from the brief:
“…public confidence will not improve with the removal of just ‘one bad apple’ where there is reason to believe there are others.”
Would we be even countenancing this argument if the issue was racist statements by a judge? Or dishonest behaviours? Of course not.
Forgiveness and rehabilitation?
The brief is so ridiculous that it’s hard to take it seriously. Instead let me address one further argument that has been making the rounds in legal circles about how to deal with Robin Camp. This reasoning says that we should be forgiving, choose rehabilitation over punishment, and coax dinosaurs like Robin Camp into the 21st century by accepting them when they are willing to learn.
First, I am not sure that “we” (aka the legal establishment) are the appropriate bestowers of forgiveness here – that right is surely reserved for the woman Camp insulted and traumatized in his courtroom (who asked for his removal from the Bench at the inquiry).
There is an obvious double standard here. Many of those working inside the justice system do not give second chances to struggling SRLs who make a mistake. Instead they jump all over them, branding them perfidious destroyers of the legal system when they miss a filing date, or fail to attach the right documents, or name the “wrong” parties. Some of those who are unforgiving towards SRLs are now urging us to be forgiving towards a judicial officer with a long history of inappropriate behavior and clear prejudice – who should surely be held to a higher standard of behavior and integrity than a member of the public trying to navigate the courts for the first time?
A simple moral compass
It is critical to public trust in the legal system that judges are held to a higher standard than their fellow citizens.
The perception of judicial integrity and competence is crucial to public confidence in the judicial system.
And as any member of the public would tell you, this public confidence is a real social phenomenon, not something to be invented via legal argument.
One unnamed, astute law professor said something to simple to our class at the beginning of the year, and it has stuck with me (something along the lines of): “if it stinks, then it’s probably wrong”.
In law, we learn over and over again that the standard of the reasonable person is what applies. It has taken 100s of years of common law development to determine that this is the standard that applies. Camp’s lawyers of course, know this well. We do not make up new ones like that of the “informed person, viewing the matter realistically and practically – and having thought the matter through”. This statement of course, condescendingly, also presumes that the public cannot be realistic, practical or think matters through. The public are only angry people with pitchforks, as you say. Changing a legal standard stinks, and it’s wrong.
I would also like to comment on the brief’s irony when stating that “[a] high level of procedural protection is required when professional status is at risk. The potential consequences are especially severe because the discipline proceeding is accompanied by publicity and stigma”. Not unlike the severe social consequences experienced by a complainant in a sexual assault case, when publicity and stigma follow. The difference is, Robin Camp himself created these severe consequences, whereas a typical sexual assault complainant gets to experience the same severe consequences, through no fault of her (or his) own.
The complainant is barred from suing Robin Camp because of judicial immunity. For every other profession it is open season on civil liability, except for judges. What then, is her recourse? The Canadian Judicial Council is all she has.
Sorry, I realized I wrote “law professor said something to simple” – “to” is meant to be “so”.
Hi May I cite this? Thanks for writing what everybody (real people) have been saying! #cdnpoli
Wow . I can not believe that reasoning. If there is more judges like Camp then why is there no rules to weed them out ? We must have a written list of duties , prohibited practises & consequences if any Judge breaches these obligations /Duties they are fried . That is how we stop this big show the Judges do at the tax payers expense . I mean really , are they stating; that if a Judge kills some one then it is all right for other Judges to kill someone ? If a Judge breaches the rule of Law then it is all right for all Judges to breach the rule of Law & put Lawyers & or companies above the law ? I can tell you first hand there is a lot of appointed Judges that did not qualify to be a Judge when at the time they where hired & have not evolved so they are not qualified to be a Judge to date ! When will the Federal & Provincial governments get this . I truly believe we must ALL contact our MLAs , Ministers Premiers & Prime Minister , & keep on bothering then until this list of Duties really happens . Please all of you help it is the only way .
I LIKED THE “FRIED”.
Derek if we write as individuals these MPs, MLAs, ministers just ignore us. They have more than enough complaints from individuals. All we need is a letter with multiple signatures not a petition. When they see we are a group (in number)s that gets their attention. Group influence votes while individuals really do not. They only care about votes
Robin Camps comment in regard are reprehensible not at all fitting nor acceptable for any judicial authority.
judges conduct and principles are set higher than general public standards for explanatory just reason. That being consequence for a breach of the public’s expectation of the set standard must warrant a differential penalty.
The public’s confidence to the application of Canadian Justice must be seen to be done It,s time to clean house by getting rid of the riff raff that puts a black mark on the Canadian Judiciary
Well said!
maybe it’s the weather but I am having a bad day but this REALLY picked me up.. NSRLP you should be in the comedy business in addition to your law business. Some of us SRLs often have a good laugh at the nonsense spewed from the bench during hearing our cases. Believe me they are even more funny than this Brief. Such is the level of conduct of our judiciary.
Amid the folly of their argument though we need to do what my grand ma often said, pick some sense out of this nonsense and for this Id’ say we need to take stock of their acknowledgement that Camp J is just one of the many judicial boo boos we have and removing just one will leave many more boo boos
“It is critical to public trust in the legal system that judges are held to a higher standard than their fellow citizens.
The perception of judicial integrity and competence is crucial to public confidence in the judicial system.
And as any member of the public would tell you, this public confidence is a real social phenomenon, not something to be invented via legal argument.”
WELL SAID!
This is the essence of the divide between the legal establishment and ordinary Canadians… and the legal establishment just doesn’t get it.
I don’t know what form the rebellion against the justice system will take, but make no mistake… the rebellion is coming and the legal establishment is still saying ‘Let them eat cake’.
WHO IS “I”?
Great post, especially the points about the use of the informed person (rationalism instead of empiricism), the relabeling of negative public opinion, and the “one bad apple” argument. Thank you.
any of these judges’ reprehensible conduct is buttressed by their connections to universities and their law schools. Law schools should seriously sever ties with these judges. Often I have personal experience with law professors commenting on bogus decisions from our courts and encourage these judges in their folly. I have long lost respect for some law schools and their law professors who turn a blind eye when they do their commentary and too many law schools are “graduating” bogus lawyers onto ordinary folk in society
I sense some hypocrites here
thank you for this follow up. i can tell you that on jan 7 2017, an article on this was printed in the vancouver sun, page NP3. it was written by christie blatchford, from calgary. i am going to assume it has been printed in many more papers across canada. the content is similar to what has been written here, but with a little less detail. There were many comments from “the public”, mine included. Not one suggested a newly educated Robin Camp is just fine. If the lawyers for this fellow are going to quote, “the public” why not just use the actual comments of the public. How about because these comments would not support what the lawyers would like. I searched for this article online and it seems to have vanished. W”hen i last read it there were close to a dozen “public” comments. So, they are now asking for empathy for this hypocrite. Let me compare how i was dealt with by the courts compared to what they are asking for. When i attempted a discovery of evidence, an actual legal right, the file was illegally transferred to another district, i was not notified of this, and while i sat in the court house with an actual booked date for discovery, the attorney representing my daughters father was in court somewhere else, getting my case dismissed because i wasn’t there. This was then proven in court, while he asked for and got, a summary judgement against me and the declaration of vexatious., what is vexatious about the issue of a childs rights to her identity and support. I had already been declared indigent and on welfare, there was an order issued against me for triple costs. I WAS SEVERELY REPRIMANDED AND RIDICULED BY THE ATTORNEYS AND THE COURT JUDGE. FOR SAYING THE EVIDENCE WAS INCORRECT AND I REQUESTED MY RIGHT TO EXAMINE THE EVIDENCE BEFORE JUDGEMENT. That is the respect the public can expect when anyone has the gall to go to court looking for justice. Abuse, ridicule and bankruptcy. Why should Robin Camp be any different. Maybe i was also a scapegoat, for all women who wish to examine evidence. I have found the court system to be discriminatory, rude, and partial to their own. Since Camp is one of their own, He may actually get all the justice he deserves, plus all of mine and many others who were also railroaded out of the courts for the impertinence as to ask for the courts time. So, what if the emotional damage done to the young woman he spoke to , and many more, is lifelong. He, the remarkable one, should not have to be responsible for that. If one is to listen to the statements from his lawyers, why, HE is the victim. victimized and scapegoated by an unappreciative public who simple do not know how to lick his boots! And finally yes, i agree, there are many more like him,,, that does not mean, lets just let it all go. It means, we start with him, and keep going, and slowly get rid of them all. Anyone not aware of or capable of, following the law as it is written, TODAY. with respect, and empathy, has no place administering it.
I am a member of the public (and an SRL) who fully supports Justice Camp remaining on the bench and who is horrified at the ease with which a witch hunt against him gained traction. What I am losing confidence in is legal academe and its propensity for emotion and overreaction rather than analysis and context.
Both Camp and Zabel are judges who have been taken down by law professors, not by the public. Any public or media reaction has simply taken its script from law professors, who should have known better from the outset than to mess in a situation (in the Justice Camp case) where a retrial was already pending. The accused’s presumption of innocence made it highly unsuitable for law professors, of all people, to set off what Alberta criminal lawyer Clayton Rice dubbed a “firestorm” within a week of Woolley et al breaking their story in the court of public opinion. Now, it is more accurately termed a “lynching.”
Any idiot can do emotion and opinion. We pay law professors to help move us away from mob rule, not to set it off as Woolley, Craig, Koshan et al did. They’ve created a chilly climate for the second trial judge and denied the accused the right to a fair trial. And by doing so, they have reduced the degree to which the public can have confidence in the courts.
Anything that makes judges work with foregone conclusions (eg of credibility or guilt) should be a huge concern to SRLs in particular.
what is a huge concern to srls ie me. is the casual disrespect that the rape victim was treated to by Camp. The lack of awareness of current law on the matter of sexual assault, and the now used methods to distract from that by claiming the public cannot make a decision, and that lots of other judges are the same, so his behavior shouldnt matter. If you want to defend this, go ahead, You stand alone. except for possibly his lawyers.
I beg to differ, I blogged about that abomination before I read anything from a law professor, I didn’t require to say, that is a DISGRACE!
Sadly, I read about the horror in newspaper, from another country.
https://barbkueber.wordpress.com/2016/09/11/canadian-judge-to-rape-accuser-why-couldnt-you-just-keep-your-knees-together-world-news-the-guardian/
Clearly appointing a few female Justices to the Supreme Court, hasn’t quite made that dirty little, not so secret, go away.
I would be willing to bet that the reference to ‘other bad’ apples is a not-so-veiled threat that if Camp is removed, some of his colleagues will be going down with him. Like a parting shot to drive the point home that they better not throw one of their own to the wolves.
Wishful thinking my friend. The other judges have the right connection so they are going no where. I maintain there is a profound statement in the bogus brief and that is, that removing camp does not remove the problem. Until we identify the real problem we will continue to have it for without identifying it we have no hopes of dealing with it. Let me say it here the problem in our court rooms is the judges’ incompetence and/or dishonesty. we need to address this problem from the point of inception by directing our energies (and resources)at extensive vetting of those who get appointed
Every judicial appointment going forward should be subject to full public scrutiny that include the right of every litigant that appeared before such a judge over the last 10 years and in the instance of first appoint to the bench the same applies to any and every person who had any dealings with the prospective judge as a lawyer (and that includes those the lawyer badly advised such as lie to them that they have no case). Until we do this we will continue to have scooby Doo judges
That is a very good Idea . Let any one that the Lawyer had dealings with talk to the Panel that short list Judges . I say that all Lawyers & Judges should have permanent records that the public can access at any time. This could prove what Lawyers or Judges have many complaints against them & we could stop the bad lawyers before they become Judges . I believe this would stop many Lawyers from behaving bad. Or prove the very bad ones . New system needed now !
The satire with which you impart the gruesome reality of this situation lends much needed clarity.
As a means of balancing the weight of the Defenses imaginary public opinion, an independent public petition is in order. Easy enough to whip one into existence and get a consensus.
“Would we be even countenancing this argument if the issue was racist statements by a judge? Or dishonest behaviours? Of course not.”
Let’s hope not; unfortunately, there are plenty of opportunities to test that theroy.
I would have expected Camps lawyers, from the outset, to consider the value of any and every card in the deck – that being the same one with which every other barrister and judge is familiar.
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One of the cards in that deck is the rhetoric about the “informed, reasonable person”, a description that I thought applied to me with respect to the matters I was pursuing. But the judges I faced made it clear that in their view I was certainly not informed and quite likely not reasonable.
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So, is it possible that with this case someone is going to admit that the notion is a fiction?
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Anyway, on that topic I just found a very interesting commentary by Lee Akazaki:
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https://leeakazaki.com/2015/09/02/in-search-of-an-evidence-based-test-for-judicial-bias/
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And here’s the judgment he refers to:
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http://www.canlii.org/en/ca/scc/doc/1976/1976canlii2/1976canlii2.html
you cant sue a judge but what stopped camp from proving he was truly sorry and giving her money-that would have helped his defence.
what about the judge 1 in 1000 rape conviction rate-judges don’t advance the law to improve this because they don’t care about rape victoms.but what stops all women from doing something about the mass rape problem?if men were raped 500,000 times per year like women are we would go to war over that-but we wont{I do}go to war for our women making me ashamed of men.
the informed person in the judges mind is a bias one sworn to protect judges-its a conflict of interest to have the judge in this case be that informed person-the track record of the CJC proves me right.
we are punished for life if found vexatious so the case law by judges proves foregiveness DOESNT work and has no place in the justice system-judges ruled this over and over.IF it is ruled camp is to be foregiven then can this be used to help a SLR not be vexatious-the common law system of judges following other judge rulings?
this judge needs to be sued, as do the rest of the incompetents. If they currently can’t be we need to change that so they can be, abuse should never have no consequence. if they claim immunity from the law. the country, and or the province in which they operate, should be held to account for appointing them and allowing them to operate in this fashion. Abuse is not a sudden once only behavior, it is learned and used all your life sort of behavior. He has been treating people like this no doubt for some time, He just got caught now.
i make the statement that you cannot sue a judge who is doing his job as he was appointed to do it, following the rules of the court, respectful of all and in a fair and honest manner. but at no point is abuse above the law. There is no special law that says abuse, either verbal physical or emotional, is not of consequence if you hold a certain job. Abuse done by these judges, is still abuse. i propose they are accountable for their behavior if it is in fact not their job they are doing.
If we SRLs could just get our act together so that governments at the various levels would not dare to ignore us we could bring about the change needed. Take for instance, what other group would dare say government should provide citizens with another form other than one controlled by judges where ordinary folk can take legal or any other action against crooked judges.
It is going to take drastic changes to make Canada’s justice system even remotely useful again
I would submit, his job is to dispense justice, justice is fair, someone biased is incapable of being fair, ergo, incapable of fulfilling the roll he is being compensated (very well compensated for!) to do, which is to dispense justice.
Excellent blog! Thanks! I can’t believe it’s 2017, can we still vote, decline children? Sorry, I digress, I’m appalled and look forward to further news or confirmation their just going to sweep this systemic problem (one of many) under the rug, being as it’s so big, and ugly and all.
I caught this one excerpted below recently and almost fell off my keyboard over this one, I mean with Women’s Rights champions like this well, small wonder we’re allowed shoes.
http://news.nationalpost.com/full-comment/christie-blatchford-dont-make-knees-together-judge-a-scapegoat-lawyers-argue
107. In closing, I now encourage the Department to no longer address workplace sexual harassment programs as just “in the works”, but programs settled upon with established dates for implementation, and this specifically for its Moncton probation office.
Source: Canadian Union of Public Employees, Local 1418 v New Brunswick (Justice and Public Safety), 2016 CanLII 50052 (NB LA), par. 107, , retrieved on 2017-01-22.
If
. . . “A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.” SECTION 2.1 INTEGRITY 2.1-1 … Lawyers Rules of Professional Conduct
.Then so should our judges. Based on the LSUC commentary below regarding lawyers, it makes sense judges should maintain an even higher degree.
In their – Commentary …[2] Public confidence in the administration of justice and in the legal profession may be eroded by a lawyer’s irresponsible conduct. Accordingly, a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety.