Conflicts of interest at judicial inquiry

Camp’s lawyer former partner of panel member

One of the lingering effects of the just-concluded inquiry into Federal Court Judge Robin Camp was the damage done to the arguably already iffy reputation of the judge-picking process in Canada.

The South African-born Camp, for instance, was appointed to the Alberta Provincial Court in 2012 and immediately assigned to the criminal division, though he was an obscure engineering and construction lawyer with no experience in the Canadian criminal courts — and, as it turned out and as he rather cheerfully admitted, no real knowledge either.

But the “Why-couldn’tyou-just-keep-your-kneestogether” judge, as Camp became known after his outlandish remarks to a sexual assault complainant, was elevated in 2015 to a $314,000-a-year seat on the Federal Court.

He hailed from a Calgary law firm with impeccable ties to the then-ruling Progressive Conservative Party of Alberta and premier Alison Redford.

And then, as now, such connections often grease the path to a seat on the bench.

Ironically, the panel of the Canadian Judicial Council, which heard the complaint against him and holds his future in its hands, provides another example of the cosy and opaque manner in which the judiciary and the top echelon of lawyers in this country routinely operate.

Unknown to the public — and even to the executive director of the CJC and the inquiry’s de facto prosecutor until Postmedia informed them this week — is that one of the two lawyer members on the inquiry committee, Cynthia Petersen, is a former longtime law partner of Frank Addario, Camp’s lawyer.

The two practised at Sack Goldblatt Mitchell in Toronto for about 15 years, until Addario left in 2012 to establish his own firm.

Petersen, who still practises with Goldblatt Partners (the successor firm to Sack Goldblatt Mitchell), appar- ently didn’t know that Addario was the judge’s lawyer when she was named, according to a statement from the committee, released Wednesday through Norman Sabourin, executive director and senior general counsel of the CJC.

She and the other four members of the committee — three judges and the two lawyers — were formally announced by the CJC on March 22.

But about four months earlier, in the fall of 2015, Addario had publicly identified himself as Camp’s lawyer.

In a Nov. 24, 2015 story in The Globe and Mail, as the judge was being suspended from hearing cases, Addario said he represented Camp and urged against a rush to judgment in the case.

And certainly, evidence heard last week from Addario’s three expert witnesses showed he was busy on the file by that time, hiring, for instance, a psychologist to counsel Camp.

Petersen and the other lawyer member, Karen Jensen, were appointed by federal Justice Minister Jody Wilson-Raybould.

Sabourin had no role in the appointments, but said as part of his administrative function, he meets with the lawyer members to discuss fees and the like.

“As a general practice,” he wrote in an email this week, “I always ask if there is any conflict that could prevent the person from acting.

“No one has disclosed any conflict,” he said.

But Sabourin admitted he wasn’t aware Addario and Petersen had worked togeth- er, and said if he had known, “I would have specifically asked if she perceived any conflict.”

Regardless, he said, he would have deferred to Petersen’s view of “whether or not an apparent or real conflict exists.”

Similarly, “presenting counsel” Marjorie Hickey — in effect, she was the inquiry prosecutor — said Wednesday in an email she wasn’t aware of the former relationship. But so long as the panel members knew about it, she said, it caused her no concern.

Sabourin said that “when (Petersen) became aware” Addario was representing Camp, she raised it with the other members of the committee.

“As Ms. Petersen had not worked with Mr. Addario in four years,” Sabourin said Wednesday, “the committee was of the view that there was no conflict of interest and no need for her recusal.”

While lawyer members of inquiry panels presumably aren’t expected to follow the CJC’s “ethical principles” for judges, the sixth of these deals with “Impartiality” and says, “Judges must be and should appear to be impartial with respect to their decisions and decision-making.”

They are urged to disqualify themselves from cases where they believe they will be unable to judge impartially.

The attached commentary notes that with respect to former law partners, “the traditional approach is to use a cooling-off period,” often said to range from two years to five.

The entire section is devoted to avoiding not only actual bias, but the perception of bias, and refers to the need that “justice not only be done but that it manifestly be seen to be done.”

Petersen was the lawyer chosen in 2014 by Liberal Leader Justin Trudeau to investigate allegations of misconduct that saw him suspend, eventually permanently, Liberal MPs Massimo Pacetti and Scott Andrews. Her report was never made public.

Petersen didn’t reply to an email from Postmedia, though the statement the committee released later Wednesday was the result of her receiving it.

Addario, in a note, said he wasn’ t surprised by Petersen’s appointment because “she is one of Canada’s leading equity and gender discrimination experts.” He pointed out he hasn’t “practised in the same firm as her for four years.”

Justice Minister WilsonRaybould didn’t respond to emailed questions, in particular if she was aware of the former Addario-Petersen relationship. An aide, Valerie Gervais, said she was “in transit” to her Vancouver riding.

The CJC panel has yet to reach a decision on Camp’s future. It will make a recommendation to the full judicial council.

JUDGES MUST BE AND SHOULD APPEAR TO BE IMPARTIAL.