Trying not to become the first federally appointed judge in Canadian history thrown off the bench for his conduct of a sex-assault trial, Federal Court Justice Robin Camp acknowledges making offensive statements but calls them "the product of ignorance not animus."
And he is asking the Canadian Judicial Council, a body of chief and associate chief justices, to allow him to depart from their usual practice and hear him out in person because, written submissions to the panel say, he is "remorseful, educated and rehabilitated."
The argument: unconscious bias is not permanent. "Once revealed to the bias-holder, it can be fixed if the subject is motivated to change."
Justice Camp, a 65-year-old married father of three, has become an emblem of a justice system that critics say is out of touch on sexual-assault law and discourages victims from reporting.
A panel set up by the judicial council recommended a month ago that he be removed from the bench after he asked the complainant in a 2014 sex-assault trial, a homeless teenager, why she did not keep her knees together.
That comment, and several others in which he took issue with the victim, the law of sexual assault and the female prosecutor, came to light last year, when the Alberta Court of Appeal threw out the acquittal in the case, saying Justice Camp relied on myths and stereotypes about sex-assault victims. After public complaints to the Canadian Judicial Council, the Federal Court removed Justice Camp from hearing cases. (Justice Camp was a member of the Alberta Provincial Court during the trial of 19-year-old Alexander Wagar, but the Conservative government of Stephen Harper later promoted him to the Federal Court.)
The panel's recommendations are now before the full judicial council, and Justice Camp has the right to make written submissions. But in those submissions, sent to the council on Friday, Justice Camp's lawyer, Frank Addario, said fairness requires an oral hearing before the full disciplinary body.
Mr. Addario also argued that Justice Camp is far from the only judge who has expressed biased views in sex-assault cases.
"In Alberta alone, at least four other judges in the last few years have been overturned on appeal for their reliance on sexual assault myths and stereotypes."
And, he said, if it is true that Justice Camp had failed to understand a "core" aspect of his job as judge, as the panel asserted, many other judges could also be removed.
"Criminal court judges commonly fail to understand 'core' aspects of their job, such as the burden of proof, the presumption of innocence and the need to apply equal scrutiny to Crown and defence evidence," Mr. Addario wrote in the submissions. "These 'core failings' could be characterized as antipathy and disdain for the … presumption of innocence and by parity of reasoning, those judges could be removed from the bench on the basis of animus. Yet most are not subject to discipline, let alone removal. Their errors are dealt with on appeal."
During a week of hearings in Calgary in the fall, Mr. Addario called three women – a judge, a feminist law professor and a psychologist – to testify that Justice Camp had with sincere motives taken extensive counselling and legal instruction from them. Justice Camp also publicly apologized for his conduct, calling his "knees together" comment "unforgivable."
The disciplinary panel said his apologies, although sincere, did not alleviate the harm he caused to public confidence.
"We conclude that Justice Camp's conduct is 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," Associate Chief Justice Austin Cullen wrote on behalf of the unanimous panel.
The Canadian Judicial Council has recommended the removal of just two judges since its creation in 1971. Both resigned before the recommendations reached Parliament, where a vote is required before a judge is removed.