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Questions loom at Camp probe about man and picking process
By Cristin Schmitz
September 23 2016 issue

The public opprobrium directed at Federal Court Justice Robin Camp spotlights long-standing problems with judicial appointments and education that are undermining confidence in the justice system, court watchers say.

Clearly the “insensitive and inappropriate” comments the 64-year-old former Alberta provincial court judge admits he directed at the complainant and the rape shield law in the trial leading to Alexander Wagar’s sexual assault acquittal two years ago have exacerbated perennial complaints about the treatment of sexual assault complainants that came to the fore again during the recent trial of ex-CBC radio host Jian Ghomeshi.

But critics say public confidence in the justice system is also undermined by some of the judicial appointments emanating from a flawed appointment process federally, and in some provinces, where political connections can be more important than jurists’ legal qualifications and personal suitability in garnering the coveted judicial posts.

As one B.C. man put it in expressing his outrage to the Canadian Judicial Council (CJC) about Justice Camp’s conduct, what is worrying “is that a man who can behave in that way could be appointed a judge in the first place — let alone be subsequently promoted to Federal Court. I think there needs to be a review of the appointment process for judges and an effective process…to review their performance after appointment.”

University of Ottawa law professor Adam Dodek questioned why the former Conservative government elevated Justice Camp to the Federal Court in mid-2015 — given the judge’s handling of the Wagar case in 2014. (The Alberta Court of Appeal ordered a new trial last year, saying there was doubt the judge understood the law governing sexual assault and that discredited sexual stereotypes and myths might be reflected in his judgment.)

“The hearing has exposed the deep flaws in the appointment process for federally appointed judges,” Dodek suggested. “Perhaps now that [former Justice Minister] Peter MacKay is not running for leader of the Conservative Party, he may be willing to explain on what basis he decided to appoint Justice Camp to the Federal Court” — given that the Crown’s appeal was pending at the time of the judge’s promotion.

Complaints that partisan political connections play an undue role in garnering judicial posts are not limited to the federal arena.

Justice Camp, a former commercial litigator with expertise in oil and gas, was managing partner of a Calgary law firm with strong ties to the then-Progressive Conservative government of Alberta when he was appointed to the provincial bench. Critics in the province have complained that too few lawyers with criminal expertise are appointed and that partisan considerations should be removed from the judicial appointment process.

University of Manitoba law professor Karen Busby queried why Alberta appointed Justice Camp to the criminal division of its provincial court — given his lack of criminal law experience.

“We wouldn’t hire a criminal law lawyer to be an oil and gas specialist,” she pointed out. “So why would he think — or anyone think — it’s OK to appoint an oil and gas specialist to a criminal court?”

Dodek said the Camp matter illustrates there are “deep gaps with judicial education in this country, especially for newly appointed judges. The National Judicial Institute has fabulous programs, but for the most part they are optional.”

Justice Camp’s apparent lack of familiarity with developments in sexual assault law that occurred in the 1980s and ’90s is puzzling, Busby said. “How can it be that any…lawyer, even an oil and gas lawyer, in Canada cannot know that the sexual assault laws have significantly changed in the last 35 years?” she asked. “That just strikes me as absurd.”

Dodek said by e-mail some judicial leaders have resisted mandatory judicial education as contrary to judicial independence. “This hearing exposes the fallacy of that argument. Mandatory judicial education may be necessary in order to protect judicial independence.”

Indeed, if the dozens of outraged complaints to the CJC about Justice Camp’s conduct are any indication, the public is not willing to cut judges any more slack when they botch sexual assault cases — notwithstanding Justice Camp’s early, and repeated, apologies, and his self-initiated undertaking of “gender sensitivity” training. “Any delay in sanctioning this man will only send a message that his behaviour is tolerated,” wrote a Windsor, Ont., woman who described herself as “a victim of family rape.”

“Does anyone really believe that deeply embedded subconscious prejudices such as those of Judge Camp, with the years under his belt, will be magically fixed by a gender sensitivity training course,” asked a woman from B.C.

A CJC Inquiry Committee reserved judgment Sept. 12 after a five-day hearing in which three defence witnesses — a judge, a psychologist and an expert on sexual assault law — testified that training and counselling the judge took at his own expense this year better equip him to understand sexual assault law and the social context and psychological impact of sexual violence, as well as to handle sexual assault cases with more empathy, wisdom and sensitivity. The inquiry is considering 24 character references, including from a female litigator who worked with him before he joined the bench. “In my dealings with Robin he never expressed antiquated views about women in general and he did not treat me differently because of my gender,” wrote Cassandra Malfair, who now prosecutes sexual assault cases. While his “ill-informed” comments “demonstrate “a lack of appreciation of the policy reasons behind changes to the law dealing with [the] recent complaint, consent and relevancy of prior sexual activity,” she said, “I do not believe he is a sexist at heart. To the contrary, he is fundamentally kind at heart.”

The CJC inquiry, launched at the behest of Alberta Minister of Justice Kathleen Ganley, was considering at press time whether Justice Camp has become disabled from doing his job as a judge, and whether the CJC should thus recommend his removal by Parliament. It is alleged that in the Wagar case he: showed antipathy toward the rape shield law; engaged in biased and stereotypical thinking in relation to the complainant; asked questions that relied on stereotypical assumptions about how a sexual assault victim might behave; made a rude and derogatory comment to Crown counsel; and made comments that tended to belittle and trivialize the nature of sexual assault and to belittle women generally.

Justice Camp acknowledged, and apologized “unreservedly,” during the hearing for using “inappropriate and insensitive” words during the trial. These included asking the 19-year-old, 100-pound woman why she didn’t keep “her knees together” — or sink her hips into the basin to stop penetration — if she did not want to have oral sex and intercourse on the bathroom counter with the 6-foot-1, 240-pound acquaintance who followed her into a washroom during a party, locking the door behind him.

But Justice Camp denied he engaged in biased reasoning, willfully refused to follow the law, or that the questions he asked reflected his reliance on discredited, stereotypical assumptions about how someone confronted with sexual assault would or would not behave, or blaming the complainant for the alleged sexual assault. “While his words were insensitive and inappropriate, he was legally entitled to ask questions in this factual area,” says the judge’s written response to the allegations, prepared by his counsel, senior criminal lawyer Frank Addario of Toronto. “The accused testified that the complainant gave him a verbal ‘yes.’ If Justice Camp accepted or was left in doubt by this version, he would then have to consider whether any apparent consent given by the complainant was vitiated by reason of force or fear.”

Click here to see this article in our digital edition (available to subscribers).