Alberta Justice Minister Kathleen Ganley says she triggered an inquiry into a judge over his conduct of a rape case to send a message to victims not to fear the courts.
"I think that ultimately the justice system needs to be able to say to a complainant: 'If you come forward, this is not how you will be treated,'" Ms. Ganley told The Globe and Mail, explaining why she complained to the Canadian Judicial Council about Federal Court Justice Robin Camp.
Justice Camp was a member of Alberta Provincial Court in 2014 when he asked the complainant in a sex-assault trial why she did not keep her knees together. He is now facing the possibility of dismissal after a public hearing held as a result of Ms. Ganley's complaint. The judicial council has recommended dismissal for just two judges since 1971.
Two other judges face reviews by the provincial court's Chief Judge after higher courts rebuked them for relying on discredited stereotypes in sex-assault cases. In a fourth case, a unanimous ruling from the Alberta Court of Appeal criticized a Court of Queen's Bench judge for questioning the credibility of three teenage women allegedly abused as children for waiting several years before telling anyone that their father (and, in two cases, their stepfather) had victimized them.
The Globe has unearthed a fifth case, known as R v Adepoju, in which the Court of Appeal criticized a Court of Queen's Bench judge two years ago. The case involved a male house guest who used physical force to try to overcome his female host's refusal to have sex with him. After 15 minutes of his use of force, she submitted. Justice Kirk Sisson had described the submission as consent and acquitted the man. The Court of Appeal, without deliberating, unanimously threw out the acquittal and convicted the man of sexual assault.
Quoting a Supreme Court ruling in the 1999 case R v Ewanchuk – also from Alberta – the appeal court said that "consent is stripped of its defining characteristics when it is applied to submission, non-resistance, non-objection or even the apparent agreement of a deceived, unconscious or compelled will." What is more, the appeal court said, after the rejection of sexual advances, reasonable steps need to be taken to ensure consent. "In this case, none were taken."
Canadian politicians occasionally criticize individual judges or courts, but such criticism is uncommon. Ms. Ganley would not go further than to describe the flawed lower-court rulings as a "significant concern." And she rejected the notion that Alberta's courts have a particular problem in their conduct of sexual-assault cases.
"I think that nationally there are some concerns with the way these cases are handled by the courts. Part of that has to do with moving the public dialogue forward. These myths and stereotypes continue to exist pervasively in society generally. The justice system needs to combat those in a really strong way. Ultimately, the justice system is the thing that ensures the law applies equally and fairly to every citizen."
As Justice Minister, she is limited, she said, in what she can do to ensure judges don't fall into approaches in sexual-assault cases that have long been barred by higher courts. But she added: "I think for the most part judges are well-educated, well-trained, they're caring people. I certainly think our provincial court has a good education system and they're constantly working on updating." She said she can help can make sure "our Crown prosecutors are well-trained and are prepared to combat those myths when they arise in court."
Ms. Ganley articled in 2011 with the provincial court and she said the judges treated her well.
"I found them to be very supportive. Our group of articling students was entirely female. I don't think anyone found it to be a sexist environment. We were treated very well and I learned a lot."
She said her government is seeking to create greater diversity on the bench. "Ultimately, the judiciary needs to reflect the population in order to understand the population."
Justice Camp, by his own description, lacked criminal-court experience when he was appointed to provincial court in 2012. Ms. Ganley said what she seeks in judges is "an ability to learn very quickly, an ability to practice with compassion. Judges need to have a lot of personal skills, because they will be placed in a position over vulnerable people."