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Canada Federal court judge barred from hearing cases related to sexual conduct

The Supreme Court of Canada in Ottawa, March 11, 2015.

Fred Lum/The Globe and Mail

The Federal Court of Canada is not allowing one of its judges to hear any cases involving sexual conduct, a rare step, pending the outcome of a review by a judges' disciplinary body of his handling of a rape case in 2014. The review comes after an appeal court said Justice Robin Camp had fallen prey to myths and stereotypes about sex-assault victims in acquitting a man of rape.

And the judge himself says he will take sensitivity training on his own time and at his own expense, and issued a public apology.

The review could lead to the first recommendation for the removal of a federally appointed judge since 2009.

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Justice Camp's handling of the case came to light two weeks ago when the Alberta Court of Appeal expressed doubts about his understanding of the meaning of consent, and his willingness to consider evidence of the victim's previous sexual activity in spite of legal restrictions. At the time of the sexual-assault trial, he was a member of the Alberta Provincial Court. In June, Conservative justice minister Peter MacKay promoted him to the Federal Court of Canada, which pays $308,600 annually. The provincial court job pays $263,731.

Under federal rules for such appointments, Mr. MacKay would not have needed a recommendation from an impartial judicial advisory committee because Judge Camp was already a member of a lower court. Judge Camp was among the last judges the Conservative government appointed before it called the Oct. 19 election.

In questioning the alleged victim of a washroom rape, a homeless 19-year-old woman whom the accused man, Alexander Wagar, outweighed by 100 pounds, Judge Camp asked: "Why didn't you just sink your bottom down into the basin so he couldn't penetrate you?" And, "Why couldn't you just keep your knees together?"

Norman Sabourin, the executive director of the Canadian Judicial Council, a discipline body made up of chief justices and associate chiefs, said he read about the case in The Globe and Mail's comment pages on Monday and decided to use his power, under new rules the council adopted in July, to initiate a review of the judge – which could lead to his removal.

"I think Canadians have a very high expectation of members of the judiciary," he said in an interview. "They expect very sound judgment and to be very aware of the social context."

Separately, four law professors are asking the judicial council to recommend the removal of Judge Camp. While Federal Court judges do not deal with criminal cases of sexual assault, they do face issues of race, gender and sexualized violence in immigration and human-rights cases, according to professors Alice Woolley and Jennifer Koshan of the University of Calgary law school, and Jocelyn Downie and Elaine Craig of the Schulich School of Law at Dalhousie.

Judge Camp, in a statement issued by the Federal Court in Ottawa, said he will step away from any current cases involving sexual conduct, pending the review. He said he recognizes that he "caused deep and significant pain to many people. My sincere apology goes out, in the first place, to the young woman who was the complainant in the matter.

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"I also apologize to the women who experience feelings of anger, frustration and despair at hearing of these events. I am deeply troubled that things that I said would hurt the innocent. In this regard, I am speaking particularly to those who hesitate to come forward to report abuse of any kind and who are reluctant to give evidence about abuse, sexual or otherwise. To the extent that what I have said discourages any person from reporting abuse, or from testifying about it, I am truly sorry. I will do all in my power to learn from this and to never repeat these mistakes."

He said in the statement he has volunteered to take gender-sensitivity counselling.

Prof. Woolley said in an interview that Judge Camp's apology may be misdirected: "I think when you bring the administration of justice into disrepute, it affects men as well as women."

Justice Camp received his law degree in 1975 from Stellenbosch University in South Africa, passed exams in Canada in 1998 and was admitted to the Alberta bar in 1999. In 2012, the Progressive Conservative government of Alison Redford appointed him to the Provincial Court. Before then, he practised business law in Calgary.

This was not a case of a judge making a mistake, the four law professors said. Judge Camp understood the law of consent, but went out of his way to disparage it.

For instance, when the prosecutor said the accused was required to take steps to ascertain the consent of the victim, who was drunk, Judge Camp asked: "Are there any particular words you must use like the marriage ceremony?" The prosecutor replied that case law has shown that Mr. Wagar needed to ask if he could go that far. Judge Camp's retort: "Are children taught this at school? Do they pass tests like driver's licenses? … It's not the way of the birds and the bees."

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The Canadian Judicial Council has the power to recommend that a judge be removed from the bench. Ultimately, the power belongs to Parliament. In 2009, the council recommended that an Ontario judge, Paul Cosgrove, be removed for comments he made in a murder case. Justice Cosgrove then resigned.

The professors said the judge's "open mockery" of the definition of consent in Canadian law harms the justice system's reputation. A case known as R vs. Ewanchuk, also from Alberta, established that there is no defence of implied consent to sexual assault in Canada. Appeal court justice John McClung had said in upholding an acquittal that a 17-year-old alleged rape victim had not presented herself to the accused man in "in a bonnet and crinolines." In 1999, the Supreme Court threw out that acquittal, and Justice Claire L'Heureux-Dubé said justice McClung, the grandson of suffragette Nellie McClung, had applied myths about rape.

Editor's Note: An earlier version of this story said the Canadian Judicial Council recommended an Ontario judge be removed from the bench because of comments he made in a sexual-assault case. In fact, it was a murder case.

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