Judging the judges: The process must change
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high-profile case also raises a much broader issue: How should our outdated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
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
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
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
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