Brenda Cossman is a professor of law and the director of the Bonham Centre for Sexual Diversity Studies at the University of Toronto
I admit that I was skeptical when I first got the phone call about the possibility of working with Justice Robin Camp. I had of course read all the media reports about the "why didn't you keep your knees together" judge. I had read the complaint to the Canadian Judicial Council, highlighting all of the other sexist remarks made during the course of the trial. It would have been easy to turn away.
But, I told myself that I believe in the power of education, and I should at least meet him.
The man that I met was not like the misogynist monster I had read about in the press. The man I met was earnestly apologetic, open-minded and eager to learn. And because I believe in the power of education, I decided to work with Justice Camp. I knew it wouldn't be a popular decision with my feminist colleagues, but popularity is not how I make decisions.
So, Justice Camp and I embarked on an intensive course in the history of sexism in sexual assault law. My assessment was that he understood the law as it was currently written, but not the decades of legal campaigns to rid the law of sexist rape myths. He knew what the law was, but not why it was this way, or the way it had been before. By the time we were done, I believe that he understood this history, and in turn, had a more robust grasp not only on why the law says what it says, but also why his comments were so egregious in light of this history.
Some may say, legitimately, that Justice Camp should have known all this before. Some may say that he was only open to learning because his job was on the line. Some may say it was too little too late. Some say the damage to the justice system was already done. These are all fair comments. The Inquiry Committee of the Canadian Judicial Council has adopted a version of them.
But, I worry that we are swift to punish. I worry that we prefer punishment to education. Because I believe in the power of education, and I am rather more skeptical of the power of punishment. History shows that education has a better pedigree of success than punishment.
I worry even more about the impulse to punish in light of the recent rise of a powerful backlash against any and all equality-seeking groups. We have moved into a new postempathy era, where more people are prepared to stand defiantly and unapologetically in favour of discrimination, sexism, and racism. I worry that we dismiss the possibility of education and move to punish those who are genuinely remorseful.
I also worry, in the new posttruth era, that we dismiss facts that we simply do not like. Justice Camp's most frequently cited comments – the infamous "why didn't you keep your knees together" – was an attempt, albeit a dreadfully worded one – to get at issues that both the defence counsel and the Crown had put into play. There was a real legal issue, though you wouldn't know it from any of the press coverage.
While it is understandable that the Inquiry Committee felt compelled to draw a line on sexist comments, and condemn Justice Camp for having crossed it, I wonder about the precedent. Feminist lawyers and advocates recognize the pervasive nature of sexism in the judiciary. Are we going to fire each and every judge who has uttered sexist comments in the course of a trial? Or, are we going to try to educate them? Preferably before the sexual assault trials, but what about after?
I leave open the possibility that some judges are beyond redemption. I am not convinced that Robin Camp was one of these. But that is because my default is not punishment. It is education.