Focus On

Camp probe counsel to be on tight leash

Thursday, May 19, 2016 @ 8:00 PM | By Cristin Schmitz

Keen to avoid the wrangling that marred the defunct Lori Douglas inquiry, the Canadian Judicial Council (CJC) has signalled it intends to keep a tight rein over its formal inquiry into alleged misconduct by Justice Robin Camp.

On May 4, the disciplinary body for federally appointed judges unveiled formal allegations against the Federal Court judge, who is not hearing cases and faces complaints from Alberta Attorney General Kathleen Ganley and several law professors about the alleged bias against women and disregard of the law he displayed in a sexual assault trial while he was still with the Alberta Provincial Court in Calgary in 2014.

The CJC Inquiry Committee, composed of three chief justices and two senior lawyers, also issued a direction to counsel participating in the hearing later this year, that the prominent Halifax lawyer retained by the CJC to present the case against the judge, Marjorie Hickey of McInnes Cooper, will play a less autonomous role than her predecessors in previous inquiries who were known as “independent counsel.”

That post was abolished after the CJC, the Douglas Inquiry Committee and CJC independent counsel in the Douglas inquiry, Guy Pratte of Borden, Ladner Gervais, clashed over their respective roles and powers in a dispute that wound up in Federal Court and culminated in the departure of Pratte and the mass resignation of the Inquiry Committee. A week before he quit, Pratte filed a judicial review application, asking the Federal Court to constrain the committee’s role in examining witnesses at the hearing, and in particular its decision to use its own lawyer, rather than Pratte, to cross-examine. He left after the CJC tried to tell him to drop that court action.

The inquiry into senior Manitoba judge Douglas ended with her resignation before the sex-related allegations against her — which she vigorously denied — could be determined on the merits.

Such power struggles, and disagreements on principle, are unlikely to reoccur in the Camp inquiry — the first under the CJC’s post-Douglas reforms to the discipline process.

The Inquiry Committee’s direction to counsel notes that it has “discretion to fashion the role of legal counsel under its authority subject to the duty to ensure procedural fairness.”

With respect to cross-examination, Hickey “will exercise her best judgment, keeping in mind the responsibility to ensure that all relevant evidence is presented fairly before the Inquiry Committee and that the inquiry is a search for the truth. This may require that evidence, including that of the judge, be tested by cross-examination, contradictory evidence or both.”

Moreover, “as the inquiry unfolds, it may be necessary for the Inquiry Committee to direct that presenting counsel adduce further evidence or engage in a line of inquiry in order to assist the Inquiry Committee with its mandate. Such a direction will be made in the course of the hearing, and the participants will have an opportunity to make submissions.”

Those directions seem unobjectionable, said Douglas Hunt of Hunt Partners in Toronto, who was independent counsel at an inquiry into the conduct of Ontario Superior Court Justice Ted Matlow. “I wouldn’t think that it benefits a panel to be attempting to control the adducing of evidence to the point where they’re indicating generally what witnesses they want to hear from, or indicating that they only want to hear evidence on a particular point,” Hunt remarked. “I think that’s the job of presenting counsel who knows that he or she has to present all of the evidence that’s relevant and to do it in a complete and fair way. And so for a panel to get into the direction of what witnesses to call and what witnesses not to call right from the outset would be getting too far into the arena. But…I think it’s perfectly fair to indicate that they would like to hear further evidence on a point, or to ask if presenting counsel will be calling evidence on another aspect of the factual basis.”

Hunt suggested it’s also OK for the inquiry members to ask some questions themselves, usually to clarify something. But if they believe an important aspect of the case has been not been dealt with in the examination-in-chief, “rather than conduct the examination-in-chief themselves, they might be better to direct presenting counsel to the issue and indicate they would like to hear some evidence on that,” Hunt advised.

The inquiry into whether Justice Camp should be removed as unfit for office — mandated by Ganley pursuant to her power under s. 63(1) of the Judges Act — will consider several allegations, including that during the trial of R. v. Wagar in the provincial court in Calgary, or in his reasons for acquitting the accused of sexual assault, Justice Camp: Made comments which reflected an antipathy toward legislation designed to protect the integrity of vulnerable witnesses, and designed to maintain the fairness and effectiveness of the justice system, by stating s. 276 of the Criminal Code (rape shield) operates “for better or worse” and “does hamstring the defence” ; has to be interpreted “narrowly” ; is “very, very incursive legislation” which prevents otherwise permissible questions “because of contemporary thinking”; and no one would argue “the rape shield laws always worked fairly.” “Engaged in stereotypical or biased thinking in relation to a sexual assault complainant and relied on flawed assumptions which are well-recognized and established in law as rooted in myths.” Asked questions of the complainant witness reflecting reliance on discredited, stereotypical assumptions about how someone confronted with sexual assault would or would not behave and/or blaming the complainant for the alleged sexual assault by: asking the complainant, “why didn’t [she] just sink [her] bottom down into the [wash] basin so he couldn’t penetrate [her]” and “why couldn’t [she] just keep [her] knees together,” and suggesting, “if she skews her pelvis slightly she can avoid him.” Made comments tending to belittle and trivialize the nature of the allegations made by the complainant by stating: “Some sex and pain sometimes go together […] that’s not necessarily a bad thing” ; “sex is very often a challenge”; “I don’t believe there’s any talk of an attack really”; “There is no real talk of real force” ; “She knew she was drunk […]. Is not an onus on her to be more careful.” Made comments tending to belittle women and expressing stereotypical or biased thinking in relation to a sexual assault complainant.

In 1996 a majority of the CJC recommended the removal of Quebec Superior Court Justice Jean Bienvenue because his sexist remarks during a murder trial had destroyed public confidence in his impartiality, and made him unfit to discharge his judicial duties. He retired a week later.