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Honestly and Faithfully

  • December 2, 2016
  • Clayton Rice, K.C.

The Canadian judiciary is under the microscope. And the intensity of criticism has increased as cases of misogyny and mistake have reached the headlines and erupted on social media. Then, on November 9, 2016, Justice Bernd Zabel of the Ontario Court of Justice in Hamilton strode into his courtroom wearing a scarlet Donald Trump MAKE AMERICA GREAT AGAIN baseball cap and I thought I felt a collective wince from judges’ chambers across the country.

1. Rules for Judges

The conduct of judges in Alberta is governed by the Constitution of Canada, by oath and the common law. The judicial oath is prescribed by the Oaths of Office Act, RSA 2000, c. O-1. The text of the statute provides, in s. 3, that a judge or justice of the peace shall swear to “honestly and faithfully” exercise the powers of judicial office. The foundational principle at common law is impartiality. In Wewaykum Indian Band v Canada, [2003] 2 SCR 259 Chief Justice Beverley McLachlin, speaking for a unanimous court, stated at para. 57: “Simply put, public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.”

What, then, does the phrase “honestly and faithfully” mean? Because honesty contains an element of good faith by definition, the phrase “honestly and faithfully” is best understood as a compendious expression of a norm. The norm is integrity which embraces both honesty and adherence to it. What does impartiality mean? The concept of impartiality is linked to bias. But cases of actual bias are rare. It is hard to prove. The legal test is thus one of reasonable apprehension which is the sole standard for judicial disqualification in Canadian law. The criteria of integrity and impartiality are principles of fundamental justice grounded in ss. 7 and 11(d) of the Charter of Rights which guarantee the right to trial “by an independent and impartial tribunal”. Integrity, impartiality and independence are all at stake here.

2. Judge Michael Savaryn

On July 21, 2016, Justice J.E. Topolniski of the Court of Queen’s Bench of Alberta, at Edmonton, released her ruling in R v JR, 2016 ABQB 414 overturning the acquittal of a young person for sexual assault. Justice Topolniski took the unusual step of substituting a conviction under s. 686(4)(b)(ii) of the Criminal Code. The appeal was taken from the acquittal entered by Judge Michael Savaryn in the Provincial Court of Alberta, Youth Division. It received little attention until the hearing before an Inquiry Committee of the Canadian Judicial Council was underway regarding the conduct of Justice Robin Camp. Both cases involved prohibited stereotypical reasoning in sexual assault cases.

Justice Topolniski held, at para. 2, that Judge Savaryn misapplied the law of consent and went on to state this, at paras. 24-5: “There is no place for sexual stereotyping in sexual assault cases and no inference should be drawn about a complainant’s credibility on how a victim of sexual assault is to react to the trauma…[T]he criminal justice system must not allow myths and stereotypes about sexual assault victims to influence outcomes. The judiciary is responsible for ensuring that impartiality is not compromised by these biased assumptions…Regrettably, that did not occur in this case.” [Emphasis mine]

It has been reported that concerns about Judge Savaryn were sent to Chief Judge Terrence Matchett. Ron Hewitt, Executive Director of the Provincial Court of Alberta, was reported as saying that consideration was being given to whether additional education is appropriate and it was being dealt with as “an internal matter”. It appears that there has not been a formal complaint. (See: Sean Fine. Another Alberta judge facing review over handling of sexual-assault case. The Globe and Mail. September 13, 2016)

3. Judge Patrick McIlhargey

On August 3, 2016, Justice Sheila L. Martin of the Court of Queen’s Bench of Alberta, at Calgary, released her ruling in R v CMG, 2016 ABQB 368 overturning an acquittal on charges of sexaul assault and sexual touching. Justice Martin set out these findings of the trial judge, Judge Patrick McIlhargey, on the credibility of the complainant, at para. 52: “Now on the date of the incident she did not scream, she did not run for help. She ran to the Co-op and called her friend and told her she could not meet her friend. At no point did she ever mention this to a friend, no complaint to a friend. There was no change in her, her aunt with whom she was living, did not notice any change in her demeanor in her at all, in fact she said it was a great summer they got along very well. She did not confide in her aunt.”

In ordering a new trial, Justice Martin dissected Judge McIlhargey’s findings this way, at para. 66: “…[W]hen analyzed, each unexplained part of this impugned paragraph appears to tap into a discredited line of reasoning and fails to take the whole of the complainant’s testimony into consideration. The comment that she did not scream or run ties into the idea that true victims of sexual assault will resist their attack. The comment that she did not tell her friend or her aunt resurrects the abrogated doctrine of recent complaint, and noting how she appeared normal to her aunt, as well as all the other comments, suggest that there is a particular way in which real victims of sexual violence would behave. The trial judge’s comments in the case at bar illustrate how quickly such myths and stereotypes can be engaged.”

Justice Martin concluded, at para. 90, that the acquittal was tainted by legal error and appellate intervention was warranted. This case also did not receive attention in the media until the Camp Inquiry was underway. Again, a formal complaint about Judge McIlhargey does not appear to have been made and it is unknown whether steps have been taken to correct his misapprehension of the law. It is important to emphasize that the stereotypical reasoning of Judge Savaryn and Judge McIhhargey has been prohibited since Parliament enacted the rape shield provisions in 1992. (See: Lauren Krugel. 2 more Alberta sex assault cases under review amid ‘knees together’ controversy. The Canadian Press. September 16, 2016)

4. Justice Robin Camp

The conduct of Justice Robin Camp has received the most attention. This case involved the complaint arising from the notorious comments he made to a sexual assault complainant, and other pejorative comments about the law of sexual assault, during a trial when he was a judge of the Provincial Court of Alberta, at Calgary. It became known internationally as the case involving the “keep-your-knees-together” judge. I have written about this previously on this blog although my comments were focused on the subsequent conduct of the Federal Court of which Justice Camp is now a member.

Justice Camp’s public apology, self-admitted incompetence, and lapse into referring to the complainant as “the accused” during his testimony at the hearing, failed to assuage public confidence in his ability to hear and decide a case with an open mind. In an article titled Judge essentially argues ignorance of the law is an excuse for his sex assault trial conduct published in the National Post edition dated September 9, 2016, Christie Blatchford summed up Justice Camp’s testimony this way: “It’s funny, but for all the acknowledged gaps in Robin Camp’s knowledge of the criminal courts, he was not so different Friday from every defendant I’ve ever seen in the witness box: deeply sorry at having been caught and full of chipper promises to do better in the future, just like every other mook.” (See: R v Wagar, 2015 ABCA 327)

5. The Vader Case

On September 15, 2016, in the midst of the Camp-Savaryn-McIlhargey controversy, Justice D.R.G. Thomas reconvened the trial of Travis Vader in the Court of Queen’s Bench of Alberta, at Edmonton, to render judgment on two counts of first degree murder. It was a judge alone trial. There was no jury. And the unusual step was taken to allow cameras into the courtroom. Justice Thomas entered convictions for second degree murder relying on the constructive murder provision of the Criminal Code that was ruled unconstitutional by the Supreme Court of Canada over 25 years ago. And with that – Chicken Little broke loose on Twitter and Justice Thomas was swept into the uproar on social media. (See: R v Martineau, [1990] 2 SCR 633; and, R v Vader, 2016 ABQB 505, at paras. 687-91)

But the difference here is that the error made by Justice Thomas could be, and was, quickly corrected. At the stage of verdict, Justice Thomas was not functus officio which is a Latin phrase meaning that his judicial authority had not ended. The remedy of appeal had therefore not been triggered. Court was reconvened on October 31, 2016, the convictions for second degree murder were vacated and convictions for manslaughter were substituted. Justice Thomas should be criticized for not seeking argument from counsel after he came across s. 230 of the Code when verdict was reserved. And he has been rightly chastised for acting arrogantly, or with a lack of humility, by assuming that he knew more about the case than the lawyers. But, without more, the error here was not tantamount to misconduct. (See: R v Vader, 2016 ABQB 625, at paras. 22-3; and, Alice Woolley. The Problem of Judicial Arrogance. October 21, 2016)

6. Trump Cap in Court

The conduct of Justice Bernd Zabel wearing a Donald Trump baseball cap in court has prompted official complaints from Professor Gus Van Harten of Osgoode Hall Law School, the Women’s Legal Education and Action Fund, the Criminal Lawyers’ Association, and Professor David Tanovich and colleagues at the University of Windsor, Faculty of Law. The facts reported in the media appear to be that Justice Zabel entered his courtroom in the John Sopinka Courthouse in Hamilton, Ontario, the day after the election in the United States wearing a red MAKE AMERICA GREAT AGAIN baseball cap, took it off and placed it on the bench in front of him. He announced that he was wearing the cap because “last night was an historic event”. There is a dispute whether he wore it when he returned after a morning recess.

In an Op-Ed titled Not in Canadian court: Trump ‘values’ – nor a Trump hat published in The Globe and Mail edition of November 14, 2016, Professor Tanovich condemned Judge Zabel’s behaviour this way: “It violated one of the most basic rules of judicial ethics – the prohibition on partisan political activity. As Principle 3.2 of the Ontario Judicial Council’s ‘Principles of Judicial Office‘ states judges ‘must not participate in any partisan political activity.’ As the Canadian Judicial Council’s ‘Ethical Principles for Judges‘ observes, ‘a judge who uses the privileged platform of judicial office to enter the political arena puts at risk public confidence in the impartiality and the independence of the judiciary.’ Justice Zabel’s celebration of this ‘historic event’ took place in his courtroom creating an even stronger appearance of conflict with the obligation to maintain integrity and impartiality.”

On November 14, 2016, Justice Zabel apologized in open court. In an article titled Ontario judge apologizes for wearing pro-Trump hat in court published by The Globe and Mail on November 15, 2016, Sean Fine quoted these extracts from the 216-word statement of apology:

“What I did was wrong. I wish to apologize for my misguided attempt to mark a moment in history by humour in the courtroom following the surprising result in the United States election…[It] was not intended in any way as a political statement or endorsement of any political views and in particular the views and comments of Donald Trump. I very much regret that it has been taken as such…I apologize for any offence or hurt caused by my thoughtlessness. I acknowledge that wearing the hat was a breach of the principles of judicial office and was a lapse in judgment that I sincerely regret. I apologize for my actions to the public I serve, the institution I represent, my judicial colleagues, members of the bar and all persons serving the administration of justice…I will humbly continue to treat all persons that appear before me fairly and impartially as I have done since my appointment to this honourable bench in 1990.”

7. What does all this mean?

There is a distinction to be made between correctness and conduct. The various provincial and federal bodies that exercise recommendatory discipline authority over judges do not exercise appellate jurisdiction. Debate about the correctness of judicial opinions is part of a healthy Canadian democracy. And that debate often takes place in two courtrooms – the courtroom where a case is heard and the courtroom of public opinion. If a party to a case wants to dispute the correctness of a judicial decision the remedy is an appeal. The Canadian federation is layered with courts that hear appeals almost daily. Conduct may ground a basis for challenging correctness on appeal. But correctness is not a basis on which to mount a disciplinary complaint about conduct.

The cases of Wagar, JR, CMG and Vader all engaged the standard of correctness. They all involved errors of law. And, yes, they were serious errors. Wagar, JR and CMG involved misapprehension of the law of sexual assault by Justice Camp, and Judges Savaryn and McIlhargey. Their trial verdicts were all reversed on appeal. And Justice Thomas reversed the verdicts of murder, in the unusual circumstances of Vader, at trial before sentencing. The cases of Wagar, JR and CMG are classic examples of trial verdicts reversed on appeal because of errors that raised questions of law. But correctness is not the only issue in Wagar which also raised questions about Justice Camp’s conduct. And correctness does not appear to have been raised at all by the conduct of Justice Zabel.

The complaint about the conduct of Justice Camp dated November 9, 2015, was first brought before the Canadian Judicial Council by four law professors – Alice Woolley and Jennifer Koshan of the University of Calgary, and Elaine Craig and Jocelyn Downie of Dalhousie University. The complaint raised two issues that focus the distinction between correctness and conduct: (1) sexist and disrespectful treatment of the complainant and (2) disregard for the law applicable to sexual assault. The authors asserted, at p. 1, that the events of the Wagar trial: “…undermine public confidence in the fair administration of justice, both in general and in relation to Justice Camp’s current capacity for independence, integrity and impartiality, and his ability to respect the equality and dignity of all persons appearing before him.”

The authors set out numerous extracts from the trial transcript as the basis for the complaint. They fell into three categories: (a) Justice Camp was dismissive of, if not contemptuous towards, the substantive law of sexual assault and the rules of evidence (b) his statements and reasoning demonstrated a pervasive inability or refusal to account for the perspective of the complainant and (c) he made numerous statements throughout the trial, and in his reasons or verdict, that perpetuate rape myths. Two examples of his contempt for the law were his derisive comments that the rape shield amendments are “incursive legislation” that prevent permissible questions “because of contemporary thinking” and that the complainant “abused the first opportunity to report” even though it was “no longer contemporarily relevant”. The assault, alleged to have happened over a washroom sink, prompted Justice Camp to ask the complainant “why didn’t you just sink your bottom down into the basin so he couldn’t penetrate you?” and “why couldn’t you just keep your knees together?” The hearing concluded before the Inquiry Committee on September 12, 2016.

On November 29, 2016, the Report and Recommendation of the Inquiry Committee to the Canadian Judicial Council was released. I will condense the following extracts from the report that highlight the committee’s findings on the foundational principles of judicial office – impartiality, integrity and independence – and why, in this case, correctness was eclipsed by conduct:

  • While we accept the principle that judges are permitted to criticize legislation, we do not find that Justice Camp’s criticism of [the rape shield provisions] was motivated by appropriate or proper considerations. His comments showed distain for the law…[W]e conclude that the Judge’s misconduct was not simply using inappropriate and insensitive words in exploring legitimate areas of inquiry. We find that his impugned questions and comments and his choice of words were rooted in his antipathy towards legislative and jurisprudential reforms designed to preserve the integrity of the justice system, foster women’s equality, and protect particularly vulnerable and often disadvantaged witnesses. (paras. 88, 277)
  • His comments reflect a classic victim-blaming attitude…revealing a gender-biased and myth-based approach to assessing evidence…We do not accept that Justice Camp’s misconduct stems entirely from a ‘knowledge deficit’, ‘remediable ignorance’ or ‘unconscious bias’. While these problems may have been factors in how the misconduct manifested itself, we conclude that the problem is a deeper one and lies in the Judge’s flawed approach to the judicial role itself. Fundamentally, Justice Camp’s misconduct is rooted [in] a profound lack of impartiality and failure to respect equality before the law. (paras. 116-7 and 280-1)
  • We conclude that when Justice Camp’s conduct is looked at in its totality and in light of its consequences, it would be fundamentally adverse to the preservation of public confidence in the impartiality, integrity and independence of the judicial role for the Judge to remain in office. When a judge displays disrespect or antipathy for the values that a law is designed to achieve or towards witnesses whose vulnerability is exposed, it encourages a similar disrespect or antipathy in others in the judicial system. Judges are not viewed simply as participants in the justice system. They are expected to be leaders of its ethos and exemplars of its values. (paras. 288-9)
  • Justice Camp’s misconduct in the Trial adds to the public perception that the justice system is fuelled by systemic bias and it therefore courts the risk that in other sexual assault cases, unpopular decisions will be unfairly viewed as animated by that bias, rather than by the application of legal principles and sound reasoning and analysis. In that way, Justice Camp’s misconduct erodes the independence of the judiciary, which is crucial to maintain in the face of the need, from time to time, to make decisions that are publicly unpopular but legally mandated. (para. 293)

The Inquiry Committee unanimously concluded that a recommendation for removal was warranted. Justice Camp’s reliance on education and contrition as a “prescription for maintaining his unique and privileged position in society must yield to a result that more resolutely pursues the goal of restoring public confidence in the integrity of the justice system.” (paras. 343-5) [Emphasis mine]

8. Conclusion

I will end where I began. The judicial oath in Ontario is prescribed by the Courts of Justice Act, RSO 1990, c. C.43, s. 80, that uses the words faithfully and impartially rather than the phrase “honestly and faithfully” employed by the Alberta statute. As much to the point here.

Those who followed the rise of demagoguery in the presidential election in the United States witnessed the most divisive campaign in living memory. Galvanized by racism and misogyny Donald Trump won the majority of Electoral College votes on a wave of rebellion in the Rust Belt – “Barak Obama’s birth certificate is a fraud” and “grab-em-by-the-pussey” are etched forever in presidential political history. The campaign baseball cap emblazoned with MAKE AMERICA GREAT AGAIN is reasonably associated with those values. And it is reasonable for an objective observer to conclude that Justice Zabel endorsed those values by wearing the Trump cap much as one would conclude that he is a Toronto Maple Leafs fan if he wore the team’s hockey jersey.

A Trump cap is more than a fashion statement. Of course, Justice Zabel has the same rights as all Canadians. The freedoms of thought and belief contained in s. 2(b) of the Charter of Rights are as much his as they are yours and mine. But he does not have the right to use the judicial office to express them. The Report to the Canadian Judicial Council of the Inquiry Committee Established Pursuant to Subsection 63(1) of the Judges Act at the Request of the Attorney General of Nova Scotia (1990) [Marshall Inquiry] put it this way, at pp. 26-7:

“Everyone holds views, but to hold them may, or may not, lead to their biased application. There is, in short, a crucial difference between an empty mind and an open one. True impartiality is not so much not holding views and having opinions, but the capacity to prevent them from interfering with a willingness to entertain and act on different points of view. Whether or not a judge was biased, in our view, thus becomes less instructive an exercise than whether or not the judge’s decision reflected a capacity to hear and decide a case with an open mind.”

The test is prospective. In the Canadian Judicial Council Report into the Conduct of the Honourable P. Theodore Matlow (2008) [Matlow Report] the question asked, at para. 166, was whether “public confidence in the judge is sufficiently undermined to render him or her incapable of executing judicial office in the future in light of his or her conduct to date.” All Canadians have a right to hear more from Justice Zabel on this – not only women and people of colour. All Canadians are the repository of la confiance du publique. Integrity is at stake here. It is integrity that pulses in the heart of Canadian democratic institutions and propels an independent judiciary. Yet honesty and faithfulness are ever the more at stake as we descend deeper into the dark days of post-truth politics. (See: William Davies. The Age of Post-Truth Politics. The New York Times. August 24, 2016)

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