Judging the judges: The process must change



Special to The Globe and Mail


David Butt is a Toronto-based lawyer

Justice Robin Camp is now facing discipline from the Canadian Judicial Council for sexist remarks he made during a sexual assault trial in Alberta. But this high-profile case also raises a much broader issue: How should our outdated judicial discipline system be realigned to fit contemporary values and expectations?

We should start by recognizing that judges are professionals providing important public services, no less nor more important than teachers, doctors, police officers, nurses, etc. We should therefore look to best practices in those fields of professional discipline, adapting what works well into the judicial context.

Professional discipline exists to address misconduct, but also to restore and maintain public trust in the profession. Nobody trusts a process that works under cover of darkness. Therefore, judicial discipline must be publicly accessible from beginning to end Ė unlike the secretive review now under way over another disturbingly ill-informed sexual-assault acquittal, this time by Alberta judge Justice Michael Savaryn.

Canadian judges have a stellar history of ensuring Canadian courtrooms are as open as possible, no matter how difficult that may be for all the litigants and witnesses. That commitment to open justice must be equally strong when the white-hot critical spotlight turns back on the judge. Furthermore, openness is more than just allowing spectators. It must also include meaningful participation by those affected.

Other professional disciplines recognize they cannot monopolize the process of judging their peers. Perceptions of clubbiness, and odours of favouritism, real or imagined, quickly become overwhelming when only teachers judge teachers, only nurses judge nurses, and so on. Judicial discipline should benefit from a healthy injection of participation from decision makers who are not judges. Well chosen members of the public, or law professors for example, could make excellent participants, along with judges, on judicial discipline panels.

Judges often make final decisions in nasty disputes, so itís not surprising that judicial complaint in-boxes are routinely stuffed with meritless accusations from angry losers. Those who do such difficult work deserve protection from such complaints, which is accomplished by vigorous but transparent vetting of complaints by panels that include members from outside the judiciary.

Decades of experience with civilian oversight of policing has shown that because people donít like being arrested and charged even when the law says they must, high volumes of meritless complaints pour in regularly. The lesson from police discipline is that thoughtful, impartial vetting is essential to ensure that discipline processes for those making unpopular but necessary decisions is fair and manageable.

Finally, those sitting in judgment of judges need a broad spectrum of remedies and penalties to respond to the particular acts of misconduct they see. Currently, the discipline options for judges are only the two extreme end points of the spectrum: fire the judge, or do nothing. This is archaic. Professional misconduct exists in infinitely varying shades of seriousness. And it can be rooted in a wide variety of shortcomings, from basic unfitness for the job, to stress, addictions, ignorance, and many more.

Astute professional regulation of judicial misconduct will require those judging judges to first carefully calibrate the quality of the misconduct and the impact it has had on the public, then consider the personal circumstances of the judge to place the misconduct in its proper context. Once this important work is done, there must be a wide range of available options to tailor the response closely to the finely tuned understanding of what the judge did wrong, and how best to fix things.

Our judges are generally held in high regard in legal circles around the world. To maintain this solid reputation, we need a world-class judicial discipline process.