LOOSE CANONS AND LOADED GUNS: Who judges judges?

My very first solo trial as a fresh-faced young defence counsel was before a provincial court judge notorious for his irrational temper. Oddly, I remember almost nothing about that day except the Mean Mad Hatter courtroom, and the sheer chaos of this judge's own arbitrary rules.

It was only later that I learned about the loaded handgun he carried under his robes to court every day.

That judge is now long gone from the bench. Retired out to pasture in one of those fond send-offs where everyone sang his praises and no one mentioned how much he'd terrorized them all.

The Canadian Judicial Council's recommendation to remove Robin Camp brought these and other trial memories flooding back. Camp is the Calgary judge who set off an international media fracas by asking a sexual assault complainant why she didn't keep her knees together. Because fear of the courtroom experience prevents so many from reporting sexual assault, the CJC's decision is a huge victory for women and all complainants.

Yet still thornier problems await, especially our culture of deference that tolerates bias, abuse or incompetence in the name of judicial independence. (Note to lawyers: the line between provincially and federally appointed judges is deliberately blurred here for easier reading).

The judge cited in my opening was enabled by a system that everyone felt powerless to change. Mainly, everyone just tried to keep their heads down and stay out of the way.

Nobody talked about the effect of this man's wanton cruelty on the lives of citizens who came before him, hoping for justice. Because we were powerless, it was all treated with a kind of gallows humour.

But it's the unsuspecting public I think of most, when I look back on it now.

It must be said that almost all judges in Canada maintain very high standards. But we're inexcusably bad at dealing with the exceptions. The afternoon alcoholic, the chronic abuser, the incurable procrastinator with a wake of desperate litigants waiting endlessly for verdicts. All surrounded by a system that knows it all and covers for them.

No profession has the impunity of the Canadian judiciary

Stories like Camp's dog every workplace, but no other profession has the impunity of Canada's judiciary.

Canadians fired our prime minister twice in the last decade. Corporate CEOs get fired all the time, including Target, Empire, and Rogers, just in 2016 alone. Doctors, lawyers, and pilots lose their licenses regularly.

Hell, even the Vatican fires priests—defrocking almost 900 between 2004 and 2014.

But there’s one job that you pretty much can’t be fired from: Canadian judge.

It’s never happened. The Canadian Judicial Council (CJC) has recommended a judge's removal 5 times in 45 years, yet no government has ever followed through and actually fired anybody.

Ever. For anything.

That’s your scandal right there, Canada.

While Robin Camp's atrocious attitudes during a sexual assault trial were irredeemable, they are symptomatic of an even deeper problem. The Canadian judicial system is permeated with cultural paternalism, a fact which even escapes most practitioners. Like fish in water, lawyers are often blind to the environment that surrounds, sustains, and protects them.

At worst, they use and perpetuate it.

Myth and history shield judges from modern accountability

The canonical robes, the obscure Latin incantations commingled with the trappings of the British Crown.

Judges are, quite literally, lords and ladies. Not kidding. That’s what you call them in superior courts. “My Lord” or “My Lady.” Like they’re a kind of royalty. Which they are. They operate under the seal and coat of arms of Her Majesty, Queen Elizabeth.

If the legal profession and especially the judiciary resembles their own secret society, well, it's no coincidence. The blend of royalty and ecclesiastic traditions in the British legal system we inherited literally emerged from Catholic canon law. Wrenched from Rome's grasp by Henry VIII in the 16th century, the courts never gave up the vestments and airs of a cloistered priesthood.

So it should come as no surprise that to a degree rarely seen in any other profession, judges overwhelmingly come from what we euphemistically call “old stock” Canadians.

Being a judge is not a profession, it’s an identity steeped in enduring myth and the history. Yet those myths shield judges from modern standards of accountability.

And who’s to judge the judges? Why, Dear Reader, they are.

If this feels somewhat less than transparently egalitarian, never mind. You could hardly find a better example of impenetrable reasoning than the CJC’s own test for judges:

Is the conduct alleged so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role, that public confidence would be sufficiently undermined to render the judge incapable of executing the judicial office?

Translate that into simple English, I dare you. No wonder nobody's got the boot in 45 years.

But stare at it squinty-eyed long enough, and the key element that emerges is some kind of scandal that undermines public confidence.

Robin Camp got Canada's judiciary into the headlines on a hot-button issue

That’s where Robin Camp failed. He got Canada’s judiciary into the papers on a hot button issue—sexual assault. The publicity is a huge part of this. Ultimately, it would reflect terribly on the judiciary (as it should) for Camp to return to the bench and sit in judgment of women again.

Yet where is the test for competence, sobriety, temperament, organizational skills, or legal mastery?

And we’re still miles from solving a much more stubborn problem, which has less to do with the judges we fire than the ones we hire. We need modernity and accountability in our judiciary, and diversity that reflects 21st century Canada.

In the delicate balance between judicial independence and accountability, we should tilt toward professionalism and transparency.

And while we're at it, let's improve the toolkit. The only tool available to the CJC is the cudgel of judicial banishment. There's no provision for suspension, probation, remedial training.

The solemnity and power of judiciary doesn’t come from the robes, the Latin, or a royal seal. It derives from the trust placed in judges by a diverse and varied Canadian public they swore an oath to serve.

Those Canadians need, and are entitled to, modern standards of professionalism and justice. Last week, with the decision to remove Robin Camp, we made a start.