Tuesday, 4 October 2016

Justice Robin Camp and decline of the judicial system

It's time, I think, to write about the case of Justice Robin Camp, although it's hard to believe I'll be able to add anything after the very thorough analyses of Clary Jaxon and Diana Davison, both civilian commentators whose condemnation of the case against Mr. Justice Camp is comprehensive and convincing. There is, really, nothing left to say about the inquiry itself or the case it concerns in the interests of public information. (But scroll down to the underlined subheading if you just want to read about Justice Camp's situation).

But there is a great deal to say about the significance of the inquiry for the judiciary and the legal system. To me, the Justice Camp inquiry and the discussion around it are irrefutable signs of legal system decline.

Decline is a fascinating phase of system and organizational life. I think it's my favourite one to analyze. Birth and growth of enterprises are so easy, so natural; even though the decisions can be tricky, it's a lot of work, and accidents happen. But in those early days, there's never any doubt about what is going on. The perceptions from inside and outside line up, and there is a synergy between user and provider that is exhilarating, independent of the product or service in question.

Maturity is a rewarding phase, offering observers and participants alike the same thrill as do high level sporting events, with performers at their absolute peak. Working inside a mature system is akin to being a part in a perfectly ticking clock.

But decline is sneaky. It is a real challenge to even detect that it is underway, especially to detect how its seeds are often sown even during those earlier phases. Looking for clues that decline is present has the same attraction that puzzles or (I suspect) video games do, or perhaps more accurately, weeding out morning glory, detecting cancer, or finding bedbugs. The reward is not what you find in itself, which may actually be kind of icky, but the opportunity to solve a problem once you have ascertained what it is and where it resides.

The indicators of decline are subtle, but the payoff of responding to finding them can be dramatic: the pleasure of renewal, and many more years of maturity at peak performance with enhanced capacity to stave off decline in the next round. Decline really is like a weed: the potential for it to take over is always there.

In contrast to what finding and responding to early signs of decline lets us do, missing or ignoring signs of decline plunges system users into a pre-decline phase of delusion and denial, which does not look good on anyone, but looks worst of all on the intellectual crème de la crème that populates law. And then, in a private organization there is demise, but in a public system there is a post-decline horror show in which the bureaucracy grows layer upon layer of scar tissue to cover up an initial sign of decay that no one has the balls to admit is there, much less to admit they are part of. I've called this interminable phase of system life a Zombie organization. Social commentator Deborah Frieze says we can only "offer hospice to what's dying," but not all Zombies can die.

It's my position that law is presenting in that phase of delusion and denial, and the sign of trouble that no one wants to talk about is the degree to which activist law has captured and played the judiciary, interfering with the correct application of doctrine. In short, the law has become arbitrary, captive to a taskmaster other than the rule of law.

The significance of the Justice Camp fiasco

In the case of the Justice Camp inquiry, the dead giveaway is the marked contrast between civilian commentary about the Justice Camp inquiry, that I linked to in the first paragraph, and the commentary about it from law experts.

When I talk about "civilian commentary," you may immediately think of what you have read in the media and what is reported as being "public opinion" (eg in the labour-sponsored Tyee or the Lawyers Weekly. But it was never the public that responded to Justice Camp's decision in R. v. Wagar: it was legal academics and a politician - it was experts who started this, not the public.

If you think about it, you'll realize that everything you know about the original trial in which Justice Camp made his controversial remarks did not come to you in the context of objective journalistic reporting of the the trial itself. The original trial probably never even made the local news, much less the national; it was just one of the dozens of personal dramas that play out in courtrooms every day, not anonymous but totally invisible to the media. So it was not that a reporter considered the remarks newsworthy, nor that the public got outraged about what a reporter reported.

No, it was some legal academics who got outraged first. How did they even hear about it? I'm going to guess it was from a lawyer involved in the case, who knows someone through some networking function in law. Those people too may not even have read the transcript of the trial before getting outraged. Whether they did or not, it was their outrage that made the news.

And when expert outrage hits the news, it bypasses all our credibility filters. I am as guilty as anyone of having fallen into the trap of assuming that Justice Camp's conduct was egregious, and took that as a given when I wrote my Scottsboro Boys post.

I count myself fortunate to have come across the more credible narratives offered by Clary Jaxon and Diana Davison. Their coverage is resolutely factual, unflinchingly thorough, and grounded in the principles and doctrine of law.

The "expert" commentary on this inquiry, in contrast, has three revealing traits. First, it is predominantly published in the public, not professional, realm. Second, it is predominantly emotional, not legal. And third, it is condescending.

On the first point, both the presence of lawyerly writing in the public realm and its relative absence in the professional realm are relevant. As with the horrendous Judge Zuker decision in the Ururyar case, which I wrote about in my Scottsboro Boys a few posts back, no one has been writing about the Justice Camp inquiry in the serious legal literature. If there is nothing to say within law while the inquiry panel deliberates, why the heck is there something to say in public?

The answer is clear from the second point, the content of the writing. It is anything but informative. It is mostly emotional. It is all about creating a public sentiment that will pressure the CJC to find against Justice Camp. The point being made in this narrative is that the public cannot continue to have confidence in the courts if Justice Camp remains on the bench.

It's important to know that public confidence in the courts is a thing in law. Judges use the idea of public confidence as a rhetorical tool to help them identify the best law for the matter at hand. It's not unlike a surgeon saying, as s/he investigates the state of a damaged knee, which decisions in this surgery will best merit this patient's confidence in his or her knee? It is, in effect, a way of determining best practice, which, in all elite endeavours, is done by experts on the basis of expertise.

What the law commentators on the Justice Camp inquiry are saying publicly, however, is different from the "best law" interpretation of public confidence. They are saying that the public can only have confidence in the courts if the inquiry lines up with the emotions of the experts who are writing. And they are saying it to to the public, not among experts who can rebut, refute, and refine.

As I did in my discussion of effective change strategies, I'm going to try to refrain from identifying the people I am criticizing. This handicaps my ability to be clear, to a degree, but I do it because I am not here to put people down. They may be very good lawyers for their clients or good teachers for their students, but their problem is that on this particular issue, they have mistaken their opinion for expertise. They think that because they are experts in law, they have better opinions than the rest of us.

I will say that these law people universally identify as feminists. Their opinions, correspondingly, are all the same, namely that Justice Camp should lose his job. This consistency among them reveals that it is not just opinion, but dogma. If it were based in fact, then consistency would reflect good analysis. Because it is based in emotion, however, it can only be dogma.

Just to prove that time spent on Twitter is not all wasted, yesterday on Twitter a quote from Karl Popper caught my attention: "In a dogmatic setting, the point is not to improve but to purify."

The word "dogma" perfectly captures the kind of writing I am seeing from lawyers about the Justice Camp inquiry. It does not filter emotion through the dispassionate lens of the law, as most legal writing does, where you come away almost blinded by the clarity that legal analysis can bring to a complex issue, but rather does the opposite: it filters law through the distorted lens of their belief, about which they are very emotional. You begin to perceive why this is an issue of system decline: there is more law and less emotion in the civilian commentary than there is in the legal commentary.

Far from breeding confidence in the courts, dogmatic commentary from experts can breed only contempt and polarization. The polarization is fine with these intellectually inbred lawyers: they are out to purify, not to improve or inform. It's a question of what might be called apostasy, that is, non-believers cannot be tolerated in the system - ergo, Justice Camp must be removed from the bench.

But that being the case, it is profoundly dishonest of them to say their preferred outcome has any hope of enhancing public confidence. The opposite is in fact true. If a witch hunt can prevail in law, then public confidence should plummet.

The third revealing characteristic of dogmatic expert commentary is its delivery down a perceived gradient. They are not commentating in public as equals, to hear and be heard. They are here to tell you what to think.

In contrast, both Clary Jaxon and Diana Davison have read, and will provide you with excerpts from, the trial transcript and the documents of the inquiry. They certainly have a strong view of what the inquiry should find, and they state it, but they also provide the factual context for their views and - very importantly - they offer you the information with which to make up your own mind. There is no gradient that they are talking down, no suggestion that they have insight that you do not. They give you all the information that they have, and give you the opportunity to draw your own conclusions. They present to the public with respect.

So, who are the real experts? Are the people inside the system really credible? If they are not, and if they are rather captive to dogma, AND IF THEY PREVAIL, then it is true that the public can no longer have confidence in the courts. Not because of Justice Camp, but because of the "experts" who chose him to be punished. Because dogma successfully masquerading as expertise is decline. It's not just a sign of pending decline, a looming tipping point. It's a sign that the system has tipped.

I love the metaphor of the tipping point because it so clearly conveys how fast and categorically decline can occur. Malcolm Gladwell's book of that title was about tipping into success. The end, however, can come the same way.

It's my perception that the Justice Camp inquiry is the tipping point into terminal decline for the legal system, the courts, and the judiciary.

The reasons I feel this is the case are, briefly, (a) that the history of how Justice Camp came to be hearing the trial in question reveals how unreliable the processes of judicial assignment are, (b) the juxtaposition in which Justice Camp is subjected to an inquiry while Justice Zuker is not, and (c) the evidence that Justice Camp did nothing wrong in law but, if you look closely at the transcript, simply took note several times during the trial that the dogma of sexual assault law is not consistent with established proper legal process.

Did Justice Camp make some unfortunate remarks to the complainant? Oh my yes, although the ones most frequently reported are less shocking than they first appear. But if you read the literature about self-represented litigants from courtrooms across the country, you will see that judges are making unfortunate remarks to litigants every single day, far worse ones than those to which this young woman was subjected. If these dogmatic feminist lawyers want to come to the defence of women being spoken to inappropriately in court, then they can find oodles of them in the SRL world; heck, they can come to my defence if they like.

But they don't care about women like me; they apparently care most about women like the complainant who was before Justice Camp. But what I'd like to know is this: if the dogmatic feminists of the legal world want to shield fragile women like the complainant - a formerly homeless, promiscuous drug-addict -  then who put her up to making a false accusation of sexual assault? And who made the decision to press ahead with prosecution?

Because if you read the transcript, following the account by Diana Davison, this looks like a false accusation. Either someone planted a new narrative in the complainant's head and put her in court to defend it, or it was her own idea that proper channels - police and prosecutors included - failed to filter out.

Those decisions, much more than anything that Justice Camp said in court, are what has caused the situation where this poor young woman, who has now had to testify in court and will have to do so again at the retrial, has also had to testify to the inquiry about Justice Camp.

The young woman clearly has enormous personal strength and resilience. She has both seen this process through AND recovered from her addiction and gotten her life onto a different track. Good for her. She might also have been able to handle having been asked awkward questions by Justice Camp in the context of having her claim dismissed, in time. Many of us are shattered by what we experience in court, and we survive and even recover. I don't say that lightly nor do I take it lightly; it marks us, independent of actual outcome. And sometimes the outcomes - such as the wrongful assignment of costs, or imprisonment on the basis of false accusations - are stunningly bad.

But the dogmatic feminists of law could not leave her alone; they had to milk her again and again for the triumph of their dogma over the rule of law. They had to file a complaint. Whether they pushed the Alberta Attorney General to follow up, forcing the inquiry, or whether the AG acted of her own accord is something I don't know. All I know is that the whole complaints process switched on a hamster wheel on which the complainant had no choice but to keep running. Now the feminist legal academics are continuing to build their occupational profile on her back, the better to bend the judiciary to their dogma; to "purify" - not improve - the judiciary and the law.

They're all drawing a good paycheque while doing so, too. The young woman? Probably still making ends meet with difficulty. In my neck of the woods we call this "poverty pimping."

Tell me quite seriously, if you think hard about this, whether this woman would be better off if this inquiry, at least, had never taken place? Maybe even if the trial had never taken place?

I know for a fact that the rest of us would be. The reason I know it is that it has become abundantly clear through this CJC process that Justice Camp is a perfectly competent judge, possibly even an excellent one, and if he suffers from a sharp tongue, believe me when I tell you it is no sharper than that of hundreds of other judges in this nation's courts.

So, I am making the assertion that the very fact that a perfectly competent judge, possibly one of the better judges on the nation's bench, can be hauled up by the dogmatic feminists for "re-education," is a sign that the legal system has tipped into terminal decline.

How terminal? Janice Fiamengo, another non-legal commentator on the state of law under feminism, has said "feminist law would be the West's mirror image version of Sharia Law - a man's word worth half the word of a woman. A man would need to prove his innocence."

That pretty much shoots down the whole of legal doctrine right there.

But what is "the end" of the legal system; of the judiciary? The problem facing us all is that there is none. We can never be rid of the legal system, and who would want to be? That choice is simply not on the table. Those who wait for the courts or the judiciary to somehow self-destruct, implode, or evaporate into thin air under the burden of dysfunction and decline will wait in vain.

What decline looks like, in a system or organization that cannot die because it is legislated into existence, is growth. That scar tissue I mentioned above? Watch it layer on. Watch for the law faculties to add programs and specialties. Watch for the advent of mandatory judicial "education" with associated governance structure. Watch for every court in the land to add compliance officers, complainant support services, and prosecutor resources. Watch new "societies" form, and funding to flow to them. Watch for the conferences that everyone is being paid to be at, for the volume of publications to explode. Watch the number of appeals escalate, as the law of sexual assault becomes so confused that false accusations routinely secure convictions, and generate appeals.

And watch from and to whom the money flows as all of this occurs.

The choices that do lie before us are those of an obese system in declining health vs. one that is fit, robust, and resilient. A dysfunctional system vs. a functional one. A corrupt one vs. a legitimate one. A dull, dogmatic, oppressive one vs. a renewed, mature, respectful one.

But can you snatch renewal from the jaws of decline when absolutely no incentives exist to do so? That is a topic I hope to explore in future posts.

In the meantime, I leave you with a couple of links by and about Karl Popper, and a reminder of the extraordinary work of the late Elinor Ostrom, via the Twitter timeline of a fan of hers on Twitter. Ostrom's thesis, in case you do not know of her Nobel Prize-winning work, is that ordinary people can sort more things out for themselves than the experts tend to think - and often better than experts. Which is maybe why juries became a part of law in the first place. And why judges might like to ensure they are used more often.

Problem is, when a small group of dogmatic legal academics can generate so much public outrage, how objective can even juries be expected to be? Let alone judges.

(edited October 10, 2016)
(edited December 1, 2016)


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