A leading feminist law professor says a judge who asked an alleged rape victim why she did not keep her knees together raised the question in response to queries from the prosecution and defence about the facts of the situation rather than out of the blue.
Federal Court Justice Robin Camp, who is fighting for his job over his conduct of a 2014 sexual-assault trial, was "insensitive" in his use of language, University of Toronto law professor Brenda Cossman told a hearing on Thursday. But Prof. Cossman, who has read the trial transcript and who gave five private legal lessons of two to three hours each to the judge, for which he paid, said the defence and prosecution had raised the issue of what the complainant did or could have done to resist unwanted sex from homeless youth Alexander Wagar.
"The comments [by Justice Camp] that are considered most egregious seem to revolve around that idea of resistance," Prof. Cossman, the former director of a feminist law institute, told a five-member panel convened by the Canadian Judicial Council, a body of senior judges. "To me, he was trying to address, albeit not in a very sensitive manner, issues already put into play by the defence and the Crown."
The trial transcript shows that defence lawyer Patrick Flynn, and later the prosecutor, Hyatt Mograbee, asked the complainant to describe the circumstances of the alleged assault, establishing that the woman's pants were down by her feet, which pushed her legs nearly together and that the complainant was in a painful position against a water faucet in a sink, and told the alleged assailant he was hurting her.
Justice Camp asked: "And when your ankles were held together by your jeans, your skinny jeans, why couldn't you just keep your knees together?"
Her response: "I don't know."
Speaking about another of Justice Camp's comments, that "sex and pain sometimes go together," Prof. Cossman said he was responding to the legal question of whether pain nullifies consent, not belittling the complainant.
Prof. Cossman's comments echo the language of Justice Camp's lawyer, Frank Addario, in his written defence: Justice Camp was insensitive, but did not mean to treat the complainant as less worthy of belief than the accused. Nor, she said, agreeing with Mr. Addario again, did he subscribe to the rape myth that women who have had sex are more likely to consent.
The comments are important to Justice Camp's defence because, combined with testimony from a senior Manitoba judge who mentored him after his remarks came to light, and a psychologist specializing in abuse victims' reaction to trauma, they suggest he is a person of good faith who erred but believes in equality and is committed to educating himself and doing better. While saying she did not defend the judge's remarks, Prof. Cossman gave his most controversial statements a less damaging tinge.
Prof. Cossman also said Justice Camp knew the sexual-assault provisions of the Criminal Code but had "knowledge gaps" – he did not know the purpose or the history of Canadian law-reform efforts meant to overcome discrimination against women. She said Justice Camp worked sincerely to fill those gaps, and she discussed each of his statements with him in the context of the history of discrimination involving sexual-assault victims.
Justice Camp was a member of the Alberta Provincial Court when he acquitted Mr. Wagar. The Crown appealed, and the Alberta Court of Appeal threw out the acquittal, ruling that Justice Camp had applied discredited stereotypes. Mr. Wagar's retrial is scheduled for November.
Lori Haskell, a psychologist and author who testified on Thursday, spent several sessions with Justice Camp, for which he paid her. She said she specializes in the neurobiology of trauma, and she said she told Justice Camp women who are terrified may "freeze" and not be able to fight or resist. Later, they may be unable to tell the "narrative" of what happened, she said.
Mr. Addario asked: "What level of understanding does he have now?"
"An extremely strong critical framework," she replied.
Three judges and two senior lawyers from across the country are conducting the hearing to decide whether Justice Camp has so harmed public confidence in the justice system that, whatever improvement he may have made, he should be dismissed.