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‘Sea change’ wave crashing on Robin Camp
By Cristin Schmitz
December 16 2016 issue

An inquiry committee’s recommended removal of Federal Court Justice Robin Camp for expressing antipathy to the rape shield law, and for relying on anti-woman myths and stereotypes in a sexual assault case, signals a “sea change” from the more lenient reprimands the Canadian Judicial Council (CJC) has meted out in the past, some experts say.

Only five years ago, Manitoba Queen’s Bench Justice Robert Dewar was merely rebuked by the CJC for his “clear lack of sensitivity towards victims of sexual assault…when he made remarks that can perpetuate negative stereotypes about women” while imposing a conditional sentence in a sexual assault case. The CJC had been deluged with public complaints about the judge’s focus on the victim’s attire, and his observation that “sex was in the air” when the “clumsy Don Juan” raped her by the side of a highway. However the judge was sent back to preside over sexual assault trials after apologizing, and meeting with a gender equality expert.

Contrast that with the approach last month by the CJC’s five-person inquiry committee, chaired by Austin Cullen, the associate chief justice of the B.C. Supreme Court. The committee concluded public confidence in Federal Court Justice Robin Camp has been so damaged that he should be fired, notwithstanding his public apologies and self-financed re-education with social context and legal experts. (At press time, the full council of chief justices was mulling whether to recommend his removal to the federal minister of justice).

Osgoode Hall Law School dean Lorne Sossin said the CJC committee’s recommendation and 116-page report represents a “sea change” in the discipline and discussion of judicial sexism and bias in sexual assault cases.

“The express inclusion of [sexual assault] survivor perspectives in the context of ‘public confidence’ is an important step in refining the open-ended test for when public confidence in a judge is so compromised that removal is justified,” Sossin explained. “Similarly, the standard that judges are to be exemplars of the ‘values’ and ‘ethos’ of the justice system sets a new, and perhaps higher bar, for the analysis in future cases,” he said by e-mail. “I was also struck by the conclusions that the activities undertaken by Justice Camp to address the misconduct — apology, therapy, legal education, etc. — were not deemed sufficient to overcome the loss of public confidence.”

The Nov. 29 report of the CJC committee can also be seen as a vindication of a kind for former Supreme Court Justice Claire L’Heureux-Dubé. She drew fire from critics in the judiciary and the defence bar almost two decades ago, for writing an influential Supreme Court judgment that bluntly dissected and denounced the “myths and stereotypes” about sexual assault that were expressed by the late Justice John McClung in the Alberta Court of Appeal’s majority opinion in R. v. Ewanchuk 1998 ABCA 52 — a notorious judgment unanimously overruled a year later by the Supreme Court.

McClung’s observations in acquitting Steve Ewanchuk of sexually assaulting a 17-year-old complainant during a job interview prompted dozens of public complaints to the CJC. McClung noted: she was not “dressed in a bonnet and crinolines;” had had a baby; the accused’s actions were “far less criminal than hormonal;” and “in a less litigious age going too far in the boyfriend’s car was better dealt with on site — a well-chosen expletive, a slap in the face or, if necessary, a well-directed knee.” Justice Camp’s controversial remarks included asking the 19-year-old complainant why she didn’t keep her knees together if she didn’t want to have sex with the much larger accused who followed her into the bathroom during a party.

The Camp inquiry cites L’Heureux-Dubé’s 1999 concurrence in Ewanchuk, and related comments in her earlier partial dissent in R. v. Seaboyer [1991] 2 S.C.R. 577.

“It does seem to mark a significant departure from the previous response of the CJC to complaints about judicial sexism,” said L’Heureux-Dubé’s biographer, University of Ottawa law professor Constance Backhouse. “McClung’s outrageous comments on sexual assault, and his earlier equally shocking and homophobic comments [in the Vriend case], only garnered him a reprimand,” Backhouse noted by e-mail. “That is a stark difference from the response to this case.”

Indeed the CJC concluded, in dispensing with multiple complaints against McClung, that sexual assault complainants, and gays and lesbians, could still be confident they would be treated fairly in Justice McClung’s courtroom — despite his remarks.

The Camp inquiry reached the contrary conclusion with respect to public confidence in Justice Camp.

Backhouse said by e-mail the Camp inquiry’s decision illustrates what seems to be a recent desire “to calm the waters, to ensure that on the surface at least, sexual assault trials must proceed without overt signs of sexism.”

“At the moment, our society seems to be locked into protracted debates over the right of women to be free from coercive, non-consensual sex,” she noted. “On the one hand, we have vibrant movements on Canadian campuses to eradicate sexual assault. On the other, we have the increasing licence to propagate sexist, and sexually violent, commentary on social media, and of course, we have [the comments of U.S. president-elect Donald] Trump.”

Backhouse said she believes the views Justice Camp expressed are shared by some other judges. Her suggested remedy is “careful selection of new judges, ongoing and effective judicial education, and above all, a deep-rooted cultural change that comes to grips with women’s right to sexual autonomy in the 21st century.”

Sossin said the CJC inquiry dismissed Justice Camp’s arguments that his views are widespread in criminal justice community, not as inaccurate, but as irrelevant to his own misconduct. “That part of the case begs the question as to what can, and will be done, to confront these attitudes and issues more broadly in Canada’s justice system, and how this might constrain avenues of inquiry in sexual assault trials,” he suggested by e-mail.

The University of Calgary’s Alice Woolley, one of the four law professors whose original complaint was the catalyst for the Camp inquiry, said “only time will tell” whether the inquiry’s decision is a watershed disciplining judicial bias and sexism in sexual assault cases.

She said she sees the misconduct of Justices McClung and Dewar as less egregious than what Justice Camp was found to have engaged in.

“McClung made a few comments in an appellate judgment,” she said, while not minimizing the seriousness of those comments. “Camp was cruel to the complainant personally, and in a pervasive way,” she argued. “The first seems closer to an error of law than to an abandonment of impartiality and independence, which is what the [CJC inquiry] saw as Camp having done.”

Woolley suggested by e-mail “the extremity of Camp’s behaviour is unique, but there are issues in our legal system with sexual assault cases. They are particularly difficult cases to handle, often turning on credibility, and in which the complainant’s dignity and reputation is at stake in a way that it often isn’t in a criminal case. We need to do better at ensuring that we have a fair trial for the accused without having the complainant degraded. We’re not there yet.”

The CJC inquiry committee found that throughout Alexander Wagar’s sexual assault trial in Alberta provincial court in 2014 (before the 64-year-old judge was elevated to the Federal Court last year), Justice Camp “made comments or asked questions evidencing an antipathy towards laws designed to protect vulnerable witnesses, promote equality and bring integrity to sexual assault trials. We also find that the judge relied on discredited myths and stereotypes about women and victim-blaming during the trial and in his reasons for judgment.”

The committee members said that, in their view, the judge committed “misconduct” and thus placed himself in a position incompatible with the due execution of the office of judge under ss. 65(2)(b) and (d) of the Judges Act.

“We conclude that Justice Camp’s conduct in the Wagar trial was so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role that public confidence is sufficiently undermined to render the judge incapable of executing the judicial office,” they wrote.

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