In making its unanimous recommendation that Federal Court Justice Robin Camp be removed from the bench, Canada’s judicial watchdog has also addressed the wider repercussions of the judge’s misconduct.
In its 116-page report, the Canadian Judicial Council’s inquiry committee said Camp’s conduct in the 2014 sexual assault trial of Scott Wagar not only eroded the public’s confidence in the judiciary, it also made it harder for judges to make findings in favour of someone accused of sexual assault without fearing they’ll be labelled as sexist.
“In other words, Justice Camp’s misconduct in the trial adds to the public perception that the justice system is fuelled by systemic bias,” reads the report. “In that way, Justice Camp’s misconduct erodes the independence from the judiciary, which is crucial to maintain in the face of the need, from time to time, to make decisions that are publicly unpopular but legally mandated.”
These are significant concerns, according to Queen’s University law professor Lisa Kerr. She said Camp’s conduct is problematic not only for sexual assault complainants but also potentially for the rights of defendants.
“Judges have to be able to make credibility findings without being afraid of facing complaints that they’re part of a biased system. Unfortunately Justice Camp’s misconduct really raised this fear, that other judges may hesitate before making those credibility findings, even when they’re appropriate,” said Kerr.
Ghomeshi case fallout
Kim Stanton, legal director of the Women’s Legal Education and Action Fund (known as LEAF), said it’s clear as day that the inquiry committee is referring to the deeply divisive sexual assault case and acquittal of former CBC Radio host Jian Ghomeshi.
Camp’s comments, according to Stanton, were amplified because they came to light in tandem with the Ghomeshi case when the public was tuned in to the issue of sexual assault.
“I think they’re taking into account, rightly, that people in Canada are engaged in a more public conversation about how these trials occur and what they say to women who are survivors of sexual assault,” Stanton said, adding that the inquiry’s report sends a very powerful message to other judges.
“There are also judges who are not yet in the current century and need to be there, and this decision tells them that.”
University of British Columbia law professor Emma Cunliffe said she was impressed with how the inquiry addressed the concerns many have about judicial bias in sexual assault cases.
“Judges in Canada today will be expected to understand not just the letter of the law, but also its purpose and the importance of protecting vulnerable complainants,” said Cunliffe. “It’s a core duty for a judge to understand the experiences of sexual assault complainants and to avoid discriminatory myths about how women may respond to sexual assault.”
To that point, the inquiry committee specifically drew attention to Camp’s comments and criticism about Canada’s rape shield law, which aims to protect sexual assault complainants by restricting the introduction of evidence about their sexual history or reputation.
The panel found Camp articulated several discredited beliefs, including “that a woman who does not actively resist when confronted by the prospect of a sexual assault is responsible for her own victimization. His comments reflect a classic victim-blaming attitude.”
Ottawa University law professor Kyle Kirkup points out that reforms in the Criminal Code to protect sex assault complainants are hardly new concepts a judge should be grappling with.
Trading in stereotypes
“These legal rules that we developed in the early ’80s were designed to try to push the stereotypes out of the Criminal Code, and yet over three decades later, we find judges like Justice Camp trading in those myths and stereotypes and seeming not to have updated his legal understanding.
Kirkup said the Camp case has further contributed to the feeling many share that sexual violence is not being taken seriously in Canadian courts.
Interim Conservative Leader Rona Ambrose noted that has serious consequences. “When we see judges and court systems treat sexual assault victims the way Justice Camp did, it undermines the confidence women and girls have in going to court, and actually reporting sexual assault.”
Cunliffe said the inquiry’s report on Camp will provide a precedent on which future cases of outdated judicial thinking will be built.
“A core responsibility of judges is not just to know the law and apply it, but also to understand the underlying social context in which the law is being developed and to educate themselves as to why the law looks as it does.”
Dismissal of judge expected
As for Camp, his only comment so far is that he’s grateful to the inquiry for considering his arguments to stay on the bench.
The judge is permitted to submit further arguments to the Canadian Judicial Council about why he deserves to stay on the bench.
But in the two previous cases where the council recommended the removal of a judge, the individuals resigned before Parliament could formally move to have them dismissed.