A judge goes on trial for his job on Tuesday after asking an alleged rape victim why she did not keep her knees closed against an attacker, one of more than a dozen comments cited in allegations that he is unfit to be a judge.
Disciplinary hearings involving judges are rare – the Canadian Judicial Council has held only 11 since 1971 – but the case of 64-year-old Justice Robin Camp of the Federal Court is unique. He is the only judge ever forced to make a public defence of his handling of a sex-assault trial in a formal hearing of the national body of senior judges.
He must do so amid heightened concern that the justice system is unfair to sex-assault victims.
After the high-profile acquittal of former CBC-TV broadcaster Jian Ghomeshi on sex-assault charges earlier this year, some women's groups said justice was not done. The comments from Justice Camp echoed an era in history that some thought was long gone – when victims were often questioned about their sexual history and judged for having been victimized.
The Supreme Court had sought to put an end to rape myths in 1999, after another Alberta judge said a 17-year-old sex-assault victim had not gone to her attacker in a "bonnet and crinolines." The court said then there is no such thing as implied consent.
Among Justice Camp's comments: "Some sex and pain sometimes go together … that's not necessarily a bad thing;" and "she knew she was drunk … is not an onus on her to be more careful." He also asked the prosecutor whether obtaining consent for sex requires "any particular words you must use like the marriage ceremony." And when, as a member of the Alberta Provincial Court, he gave his ruling in 2014, he made a spectacular slip – more than once – by referring to the complainant as "the accused." (That one is not included in the statement of allegations.)
The question for the panel of three judges and two lawyers sitting in judgment on Justice Camp is whether his continued presence would so undermine public confidence in the country's judges that he must be removed.
"I think the judicial council's primary focus has to be the integrity and repute of the justice system," University of Ottawa law professor Carissima Mathen said in an interview, calling Justice Camp's conduct so extreme that it might obscure more subtle and deeply rooted problems in sexual-assault law, of which one is that it almost escaped public notice.
The hearings at the Westin Hotel in Calgary are expected to last five days, and are open to the public, but will not be live-streamed on the Internet, and cameras will be barred, just as they are in most Canadian courtrooms.
In the judge's written defence statement, he admits he was wrong (although not as wrong as his accusers say) and asks for another chance. He will produce reference letters attesting to his integrity and good intentions. He intends to apologize at the hearing and say he has taken training from a judge, a feminist law professor and a psychologist who have changed his thinking on the law, social context and psychological impact of sexual assault. (The only two judges whose dismissal was recommended after a hearing had also apologized. One of those, Jean Bienvenue of Quebec Superior Court, convicted a woman of murdering her husband in 1995, saying she caused more suffering than the Nazis did to the Jews at Auschwitz.) The three women who conducted that training with Justice Camp will testify at the hearing before the two-man, three-woman panel chaired by Associate Chief Justice Austin Cullen of the B.C. Supreme Court.
A married father of two adult sons and a daughter, Justice Camp went to law school in South Africa, and later moved to Calgary, where he passed law exams in 1998, and eventually served as managing partner for JSS Barristers as a specialist in business law before Alison Redford's Progressive Conservative government appointed him a judge in 2012.
The first allegation set out against him is that he made comments reflecting "an antipathy toward legislation designed to protect the integrity of vulnerable witnesses, and designed to maintain the fairness and effectiveness of the justice system." That legislation is Section 276 of the Criminal Code, the so-called rape-shield provisions aimed at ensuring that complainants are not questioned about their previous sexual behaviour. But Justice Camp's lawyer, Frank Addario of Toronto, will argue that judges are permitted to criticize legislation "so long as they fairly apply it" – and Justice Camp did so, he will say.
Justice Camp acquitted Alexander Wagar of sexual assault in the case. (The federal Conservative government later appointed Justice Camp to the Federal Court, where he is paid $314,100 a year.) The comments came to light last fall, after the province's Court of Appeal threw out the acquittal, ruling that Justice Camp had succumbed to myths and stereotypes about women and rape. Four female law professors wrote a comment piece in The Globe and Mail and complained to the Canadian Judicial Council. Federal Court Chief Justice Paul Crampton then announced that Justice Camp was removed indefinitely from hearing cases, although he continued with a case he had begun. Alberta Justice Minister Kathleen Ganley subsequently invoked her right to ask for a hearing to be held. She called Justice Camp's conduct "manifestly and profoundly destructive" of the judge's role.
The five-member panel could call for Justice Camp's dismissal. The recommendation would then go to the judicial council, which includes chief and associate chief justices across Canada. If it affirms the recommendation, the federal Justice Minister would present it to Parliament, where the House of Commons and Senate would be asked to vote on it. But in the two cases out of the 11 hearings in which the council urged dismissal, the judges resigned first.