Judicial independence is essential to the achievement and proper functioning of a free, just and democratic society based on the principles of constitutionalism and the rule of law.
- Mackin v. New Brunswick (2002 SCC 13)
Dear Sir or Madam,
A few months ago, Federal Court Justice Robin Camp appeared before the Canadian Judicial Council (CJC) in an inquiry to determine whether his comments in a 2014 sexual assault trial warrants his dismissal from the bench. Justice Camp presided over the trial during his tenure as a Judge in Alberta’s Provincial Court. The conduct in question included Justice Camp repeatedly calling the sexual assault complainant “the accused” and asking the complainant why she didn’t keep her knees together.[1]
These comments are abhorrent and inappropriate in any context, let alone when they are made by a Judge during a sexual assault trial. Justice Camp himself stated that his remarks were “unforgivable” and that “Canadians deserve better of their Judges”.[2] In many other employment contexts, similarly degrading comments would likely result in dismissal. However, Justice Camp still awaits the CJC’s decision.
You may be wondering why Justice Camp did not face immediate removal, even amid considerable public outcry, and why it so difficult to remove judges from the bench. Canada’s high standard for what constitutes judicial misconduct amounting to dismissal exists to protect the justice system’s independence from the government. Judicial independence is a cornerstone of Canada’s governing structure and it maintains the division of powers that is so essential to a functioning democracy. Security of tenure is one of three essential components of judicial independence, alongside financial security and administrative independence.[3] Put simply, if the elected government could easily remove judges from the bench, judges may start to consider the popularity of their decisions rather than purely examining the law.
The Supreme Court of Canada has characterized judicial independence as an unwritten constitutional principle, but there are at least four other sources for the principle in the BNA Act.[4] First, the division of powers in sections 91 and 92 necessitates the existence of an independent umpire for jurisdictional disputes.[5] Second, the Charter gave courts a larger role in defending civil liberties against government intrusion; independence from the government is absolutely required to fulfill this requirement.[6] Third, the BNA Act’s preamble states that Canada is to have a Constitution “similar in Principle to that of the United Kingdom”, where judicial independence is also fundamental.[7] Fourth, the “judicature provisions”, sections 96-100 of the BNA Act, enshrine judicial independence. Sections 99 and 100 specifically safeguard tenure and payment, to limit the executive from successfully exerting pressure on decision makers.[8]
The BNA Act repeatedly reinforces judicial independence, so despite public outcry and frustration when judges engage in misconduct, it is so important to remember why we maintain such a high standard for removal. Also, this is not to say that judges can’t be removed. The CJC is responsible for federally appointed judges and there have been eleven public inquiries since the process was established almost fifty years ago. Only two judges have been recommended for removal, though both chose to resign before the recommendations went to Parliament for a decision.[9] Whether or not Justice Camp’s misconduct is egregious enough to overcome the high standards of judicial tenure remains to be seen.
For more information about Justice Camp, click here and here. For other examples of judges currently under scrutiny for decisions made on sexual assault cases, click here.
Your humble and obedient servants,
The Dominion
[1] Jason Markusoff, Charlie Gillis, Michael Friscolanti “The Robin Camp case: Who judges judges”, Maclean’s. (14 September 2016), online: <www.macleans.ca/news/robin-camp-case-who-judges-the-judges/>.
[2] Ibid.
[3] “The Judiciary” (09 September 2016), Canada’s Court System (Government of Canada website), online: <http://www.justice.gc.ca/eng/csj-sjc/ccs-ajc/05.html>
[4] Justice Ian Binnie on behalf of the Supreme Court of Canada, “Judicial Independence in Canada” (Paper delivered at the World Conference on Constitutional Justice, Rio de Janiero, 16-18 January 2011) online: <http://www.venice.coe.int/WCCJ/Rio/Papers/CAN_Binnie_E.pdf>.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Portland: Hart Publishing, 2015) at 122.
[9] Robson Fletcher “Justice Robin Camp should be removed for sex assault trial mistakes, inquiry hears in closing arguments”, CBC News. (12 September 2016), online: <http://www.cbc.ca/news/canada/calgary/justice-robin-camp-inquiry-monday-closing-arguments-1.3758344>.
