In a media statement released on November 9, the Federal Court of Canada commented on the decision of the Canadian Judicial Council (CJC) to review the conduct of Justice Robin Camp while sitting as an Alberta Provincial Court Judge. As widely reported, Judge Camp conducted the trial following a widely discredited understanding of sexual assault which flew in the face of Canadian law. His comments, moreover, revealed a dismissive bias against complainants which most Canadians would find offensive. The judgment of the Court of Appeal of Alberta, in ordering a new trial, was terse in its disapproval of every aspect of the trial judge’s handling of the case:
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.
The Federal Court’s statement in response to the news of the CJC’s review was reported to be as follows:
The Federal Court welcomes the CJC’s review and is pleased that Justice Camp is fully cooperating with that review.
In the meantime, no new cases will be assigned to Justice Camp that involve issues of sexual conduct or any matter that would raise comparable issues. As well, Justice Camp has agreed to recuse himself from any such cases currently assigned to him.
Furthermore, Justice Camp has volunteered to undertake a program of gender sensitivity counseling at his own expense and on his own time in order to understand more fully the implications and significance of his comments before the Provincial Court of Alberta, and he will ensure that he does not make similar comments in the future.
Justice Robin Camp has provided the following personal statement: “I have come to recognize that things that I said and attitudes I displayed during the trial of this matter, and in my decision, caused deep and significant pain to many people. My sincere apology goes out, in the first place, to the young woman who was the complainant in the matter.
I also apologize to the women who experience feelings of anger, frustration and despair at hearing of these events. I am deeply troubled that things that I said would hurt the innocent. In this regard, I am speaking particularly to those who hesitate to come forward to report abuse of any kind and who are reluctant to give evidence about abuse, sexual or otherwise. To the extent that what I have said discourages any person from reporting abuse, or from testifying about it, I am truly sorry. I will do all in my power to learn from this and to never repeat these mistakes.”
Without wading into the legal debate and psychoanalysis of Judge Camp’s conduct or the appropriateness of his apology, one cannot help observing that the Federal Court’s issuance of this media release is in itself peculiar. It goes against the basic concept of the court as institution without collective legal personality. The court is only a conduit of powers granted by the Constitution. In this case, the Federal Court is a statutory s. 101 Court lacking inherent jurisdiction. This court axiomatically can have no self-interest of a body corporate and cannot ‘welcome’ the CJC’s investigation any more than it can express a view that such an investigation is unwarranted. The transparency and integrity of the administration of justice does not belong to the court but to the public.
The power to assign judges to cases does not rest with the court but with the Chief Justice or the Chief Justice’s delegates. The court is not a democracy and has no collective voice. The Federal Court has no ability to speak on substantive issues except through the judgments of its individual puisne judges. Media statements by the court’s administration are, for this reason, generally limited to announcements related to the administrative support of the judges, such as appointments, practice advisories and rule changes. This point is vital because judges are free to disagree with their colleagues in the same court without fear of sanction, and the appropriate recourse in case of error is its appellate division. Even there, judges are free to dissent from the majority view. By issuing a press release welcoming investigation of one of its complement by an outside agency of the state, the court gives the illusion of a collective voice outside the scope of its decision-making power as an impartial forum.
When we read this extraordinary media statement, we must ask ourselves: In what capacity was the Federal Court speaking, and to what end? The matter at issue is an Alberta Provincial Court matter over which the Federal Court has no power of review and is therefore none of the Federal Court’s business.
Furthermore, the Federal Court’s participation in publicizing Justice Camp’s expressions of contrition has caused the court (a) to insert itself in a matter that is under active investigation by the CJC, a body with disciplinary authority over all federally-appointed Canadian judges and (b) to breach the sub judice rule against making public statements while the period for any appeal to the Supreme Court of Canada has not expired.
On the latter point, it does not matter that public and expert opinion appears overwhelmingly to support the Alberta Court of Appeal’s decision to order a new trial, or that a further appeal is unlikely. Until time has expired for the accused to apply for leave to appeal, Mr. Wagar has the right to argue in support of his acquittal. After having traumatized an innocent young complainant during the proceeding, the judge has now reduced to a negative certainty what legal avenue Wagar had to avoid a second jeopardy to his freedom as a citizen of Canada. Justice Camp, evidently, has decided that his avoidance of discipline or removal from the bench to be more important than the rights of the accused whom he acquitted.
One of the burdens of the office of judge is having to live with what others may think or say publicly about you after rendering judgment, without being able to respond. A judge’s acts, once reduced to a formal judgment of the court, are not his or hers to take back. This is part of the legal doctrine of functus officio. In enabling Justice Camp to break this fundamental judicial rule, the Federal Court’s statement has compounded the offences to the rule of law and to the independence of Canada’s judiciary from politics.
The only legitimate part of the statement is the power of the Chief Justice of the Federal Court to assign Justice Camp to matters not involving sexual conduct. Despite the perception that the Federal Court’s docket does not include such matters, we are to be reminded there are many instances such as review of refugee cases where sexual violence is very much the basis of the litigation. A simple statement about this, without giving voice to Justice Camp’s apparent Pauline conversion, would have sufficed.