Sunday March 19, 2017

There's a difference between bad judges and bad decisions

Former Justice Robin Camp. (Andrew Balfour/Federal Court)

Former Justice Robin Camp. (Andrew Balfour/Federal Court)

Listen 9:44

Alice Woolley was one of the complainants to the Canadian Judicial Council in the case of Justice Robin Camp.

Camp was the Alberta judge who resigned following a CJC ruling that his behaviour during a sexual assault trial "was so manifestly and profoundly destructive of the concept of impartiality, integrity and independence of the judicial role that public confidence is sufficiently undermined to render the judge incapable of executing the judicial office."

While Woolley, a law professor at the University of Calgary, believes Camp's conduct during the trial was inexcusable, she also believes we should treat the discipline and regulation of judges with extreme caution and she wants Canadians to remember an important distinction between rulings we disagree with, and judges who behave badly.

This interview has been edited for clarity and length.

Alice Woolley

University of Calgary law professor Alice Woolley was among the first to formally file a complaint about judge Robin Camp's handling of an Alberta sexual assault trial in 2014. (Courtesy of the University of Calgary)

You want to make a distinction between bad judges, and bad decisions by judges. Why is that distinction important? 

One of the things that makes regulation of judges difficult is that judicial independence is really important. And by judicial independence what I mean is that, a judge can make a decision which is unpopular or which challenges the government, or which says that the government has acted wrongfully, and the government can't turn around and say "well you're a bad judge, we don't like you, let's get rid of you." And if you look at what's happening with that immigration ban that happened in the United States, it was judges who said "this is unlawful, you can't do that."

"We have to have a certain tolerance for imperfection in our judges." - Alice Woolley, University of Calgary

So an independent judiciary is incredibly important, and that means we have to be really cautious and really careful about how much we let the government regulate judges. So we don't want to just have people intervene. We have to have a certain tolerance for imperfection in our judges, so that we don't over-regulate them, or we don't use their imperfections as an excuse to interfere with their independence.

And the system is actually built to accommodate bad decisions. 

Yeah.... to the extent that there were errors by Justice Camp, those went to the Alberta Court of Appeal and the Alberta Court of Appeal said "there were errors here, have a new trial."

"If judges could always get it right we wouldn't need an appeal court system." - Alice Woolley, University of Calgary

 And so we have systems of appellate courts in every province, in the federal court system up to the Supreme Court of Canada. And they're there to fix mistakes. If judges could always get it right we wouldn't need an appeal court system. We can be critical of decisions, we don't have to say "well this is a mistake we can't criticize it," you criticize the decision, you identify the mistake, and you allow the system to correct itself.

Can you give an example of how a judge does something that could look like bad judging, but is actually just a mistake?

I think the most obvious example of that is the Travis Vader case. Where the judge looked at the Criminal Code, saw a provision which is in fact, unconstitutional, it's still in the Criminal Code so you see it when you look at the code, but it's in fact unconstitutional and he applied it in finding Travis Vader guilty, he found him guilty of an offence that doesn't exist. That was a mistake. It's a bad mistake, but it's just a mistake. It's not an instance of misconduct. 

So a problem begins when something like that happens and Canadians start saying 'fire that judge?'

Yeah, and that's what I don't want to see happen, because judges are going to make mistakes. Doing law, determining when something is on the wrong side of a line and when it's not on the wrong side of the line is actually quite difficult to do. We struggle with these things in our everyday lives. Judges just do it in a consequential way. And I'm not saying that means we should have low standards for our judges, it's just a matter of recognizing there are a number of factors at play before we say a judge has committed misconduct.

So walk me through a dinner party conversation. You're sitting next to someone who takes the Camp decision as evidence there's something wrong with our judges. What do you say?

Well, that's an interesting question. I don't want to be suggesting that the Camp case means nothing. I don't want to be suggesting that it was so completely outside of everything that happens in our world that we can learn nothing from it. I do think the case tells us something about our need to make sure our judges are educated. I do think it tells us something about our need to make sure that judges who are appointed to our criminal codes either have the competence to be there when they walk in the door, or to make sure that they get the competence after they walk in the door.

"There are a lot of thing that players in the legal system can learn from this as a bad example of what not to do. At the same time just to say, at any future case, we have to look at that case on its merits." - Alice Woolley, University of Calgary

I think it tells judges something about the importance of not being too confident in your knowledge in the courtroom. Being willing to listen to the lawyers. Making sure you're respectful of the parties. There are a lot of thing that players in the legal system can learn from this as a bad example of what not to do. At the same time just to say, at any future case, we have to look at that case on its merits. We have to say "what did this judge do? Did this judge actually violate the obligations of his or her office, or did the judge just make a mistake?" And to think about where that line is: between something which is a mistake, and something which is misconduct. And it's a line. There will be a point at which a mistake crosses the line into misconduct. And we have to think really cautiously about that, bearing in mind that we want our judges to be independent, we want our judges to make tough calls without the government looking over their shoulder.

What's the worst case scenario? What happens if Canadians see a ruling or decision that they don't like, and start thinking "well that's just a bad judge?" 

I think the worst case scenario is around the loss of judicial independence. That we lose our ability to have judges as an effective check on legislative over-reach. On parliament going too far. On actors of government going too far. We need to have a robust, competent, independent judiciary, and I don't want this case to result in the loss of that. I think that the legal system is super imperfect. I think the legal system always needs to be aware of its imperfections. But at the same time, this is an atypical case. Generally speaking, our judges are trying to reach the correct legal outcome, and to treat all the parties before them fairly and respectfully. That's what occurs most of the time in a Canadian courtroom. And what happened here is not what happens most of the time in a Canadian courtroom.