A senior Manitoba judge who has acted as a mentor to Federal Court Justice Robin Camp – who faces the possibility of dismissal for asking a woman in a rape trial why she did not keep her knees together – says he is deeply remorseful and ready to do better.
Justice Deborah McCawley of the Court of Queen's Bench, who is involved in national training programs for judges, told a hearing on Justice Camp's conduct of the sexual-assault trial that he has educated himself, taken psychological counselling and is a good man with much to contribute as a judge.
Initially, she said, she was skeptical about his sincerity, but after the first meeting with him, she accepted that his motivation was genuine. He was his own harshest critic, she said, and felt remorse for the pain he had caused the complainant, his colleagues on the bench and "the institution he loves." Federal Court Chief Justice Paul Crampton asked Manitoba Court of Queen's Bench Chief Justice Glenn Joyal to provide a mentor after the comments came to light, and Chief Justice Joyal asked Justice McCawley.
"He's a very compassionate, empathetic person," Justice McCawley said of Justice Camp, a married father of three who turned 64 last month, and whose wife and daughter have been attending the hearing. And she herself learned of the dangers of narrow thinking in working with him. "I found myself thinking, 'He was 63, a white South African male.' I was guilty of stereotypical thinking." He is not a racist or a misogynist, and he is fair-minded, she said.
"Is Justice Camp teachable?" asked his lawyer, Frank Addario.
"Very much so," she replied.
The testimony from Justice McCawley is part of Justice Camp's defence that he was insensitive in the 2014 trial and needed improvement, but did not intend to treat the complainant as less worthy of belief than the accused, Alexander Wagar. Mr. Addario also intends to call a psychologist and a feminist law professor who have also been working with him.
The five-member panel convened by the Canadian Judicial Council, a body of senior judges, will need to consider whether Justice Camp's conduct has so deeply affected public confidence in the justice system that, in spite of any improvements he may have made, he must be removed from the bench. Alberta Justice Minister Kathleen Ganley asked for the hearing, saying Justice Camp had harmed the justice system's integrity. There have been just 11 such hearings since the council was formed in 1971, and just two recommendations for dismissal. (Both judges resigned, rather than have the recommendations put to a vote in Parliament.) A transcript of the trial shows that Justice Camp allowed questions about whether the complainant said no to men's sexual advances in the past.
The questions about previous "flirtations" from defence lawyer Patrick Flynn drew immediate and repeated objections from prosecutor Hyatt Mograbee, according to the transcript, which was made public on Wednesday, after the panel lifted a temporary publication ban on its contents.
Mr. Flynn said he wished to establish that the complainant had the demonstrated ability to say no. Ms. Mograbee said such questions are no different than raising a complainant's sexual history. But Justice Camp said they are the opposite; they are about the ability to say no.
The complainant acknowledged under questioning by Mr. Flynn that a male friend had liked her, and she made it clear she was not interested. The transcript indicates that this appears to have led Justice Camp to ask the questions that now have him fighting for his job: Why did she not slide her bottom into a sink basin in the bathroom where the encounter took place, or close her knees, if she truly wished to say no?
"She certainly had the ability," Justice Camp said, "perhaps learnt from her experience on the streets, to tell men to fuck off." Justice McCawley said she had read the transcript and a complaint from four law professors and found Justice Camp's conduct "appalling." But she said it is difficult to conduct a sex-assault trial, and it is important for judges to keep in mind the obligation of fairness. She said she gave Justice Camp a reading list on sexual-assault law and its social context, and he often phoned her to discuss the issue.
"We talked about how it could have been done in a different way to convey an appropriate message," she said of his conduct and comments during the Wagar trial. Justice McCawley at first resisted detailed questions from lawyer Marjorie Hickey, who is presenting the case to the panel, saying that judges would not come forward if their discussions are aired in public. But Ms. Hickey asked the panel to direct Justice McCawley to elaborate on what she had said to the judge, and the panel agreed that she should do so.