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Judge frozen out of getting any new cases

Thursday, November 26, 2015 @ 7:00 PM | By Cristin Schmitz

Federal Court Justice Robin Camp — under review by the Canadian Judicial Council (CJC) for his handling of a sexual assault trial last year — is no longer being assigned cases by the court, The Lawyers Weekly has learned.

The news emerged after the Federal Court initially stated Nov. 10 the judge would only be kept off cases in which there was an implication of sexual matters.

However Federal Court executive officer Andrew Baumberg said by email Nov. 16 “the Chief Justice [Paul Crampton] has informed Justice Camp that his priority for the weeks ahead is to follow the [gender sensitivity] counseling program referred to in the November 10 court statement, and that no assignment will be made until further notice.”

The court’s Nov. 10 statement “welcomes” the CJC’s review. It was issued one day after University of Calgary associate law dean Alice Woolley and three other law professors complained to the council of chief justices about Justice Camp’s handling of a sexual assault case while he was still with the provincial court in Calgary. They allege his actions demonstrated “absolute disregard and disdain for the affirmative definition of consent to sexual touching established by Supreme Court of Canada in R v Ewanchuk, [1999] 1 SCR 330 and sections 273.1 and 273.2 of the Criminal Code [the rape shield provisions].”

“No new cases will be assigned to Justice Camp that involve issues of sexual conduct or any matter that would raise comparable issues,” the Federal Court said of its new member who was elevated to the federal bench by the former Conservative government last June — with a $47,000 pay bump — after three years in provincial court.

“As well, Justice Camp has agreed to recuse himself from any such cases currently assigned to him,” the Federal Court said in its statement. “Furthermore, Justice Camp has volunteered to undertake a program of gender sensitivity counseling at his own expense and on his own time in order to understand more fully the implications and significance of his comments before the Provincial Court of Alberta, and he will ensure that he does not make similar comments in the future.”

In the same press release, Justice Camp said, “I have come to recognize that things that I said and attitudes I displayed during the trial of this matter, and in my decision, caused deep and significant pain to many people.” He apologized to the complainant and “to the women who experience feelings of anger, frustration and despair at hearing of these events. I am deeply troubled that things that I said would hurt the innocent.”

Since then Woolley and other law professors have called on federal Justice Minister Jody Wilson-Raybould and Alberta Justice Minister Kathleen Ganley to require that the CJC launch a public inquiry into whether the judge’s conduct renders him unfit to remain on the bench — rather than leaving it to the council’s discretion if the complaint should go beyond the initial review.

“The CJC has not shown in the past decade all that much ability to be an effective regulator of judges,” Woolley told The Lawyers Weekly.

At press time Wilson-Raybould and Ganley had discussed the law professors’ request, but neither minister had yet announced whether she would mandate a CJC inquiry.

“I’m pleased to see the matter is under review by the CJC,” Ganley said by email. “I am also exploring my options in terms of next steps. Although I cannot comment on the specifics of this case, I am absolutely committed to ending any instances where sexual violence is excused, or explained, by blaming victims. The Supreme Court of Canada has been exceedingly clear that there is no place for sexual stereotyping in Canadian law.”

Via her spokesperson, Ganley also indicated she is reviewing the appointment process for provincial court judges. “We are…committed to ensuring our provincial judicial appointment process is fair and transparent, and will consider any appropriate changes to ensure this is the case.”

Justice Camp, formerly a commercial litigator, was managing partner of a Calgary law firm with strong ties to the then-Progressive Conservative government at the time he was appointed to the criminal division of that bench. Critics in Alberta have complained that not enough lawyers with criminal expertise are appointed there and that partisan considerations should be removed from the judicial appointment process.

Provincial court judges do not go through the standard federal screening process by judicial appointments advisory committees when they are vetted for the federal bench.

A federal Department of Justice spokesperson indicated by email Wilson-Raybould would not comment because, as justice minister, she could potentially face a recommendation from the CJC to remove Justice Camp for misconduct. “Given the potential role of the Minister of Justice in judicial conduct matters, it would be inappropriate for her to comment on the specifics of this case,” Ian McLeod wrote. “We need to let the process unfold.”

Last month, the Alberta Court of Appeal overturned Justice Camp’s sexual assault acquittal of Alexander Wagar and ordered a new trial. It cited Justice Camp’s misapprehension of the evidence and basic elements of the law of sexual assault. It also pointed to his reliance on “discredited” rape myths and stereotypes in his reasons for judgment and comments during the trial. These included referring to the 19-year-old complainant as the “accused,” and asking the 100-pound homeless woman why she didn’t keep “her knees together” — or grind her hips into the bathroom sink to stop penetration — if she did not want to have oral sex and intercourse on the bathroom counter with the 6’1,” 240-pound acquaintance who followed her into a washroom during a party, locking the door behind him.

“Our complaint arises…from Justice Camp’s sexist and disrespectful treatment of the complainant in the case and his disregard for the law applicable to sexual assault,” Woolley and law professors Jennifer Koshan of the University of Calgary and Elaine Craig and Jocelyn Downie of Dalhousie University wrote to the CJC.

“This was not a case of mere judicial error. Mistakes by judges as to the law, even egregious mistakes, are not properly the subject of a complaint to the CJC. Complaints are warranted only in exceptional cases where the judge’s disregard for legality is such as to undermine the rule of law and, consequently, to bring the administration of justice into disrepute. In our view, Justice Camp’s treatment of the law is in that category.”

Justice Camp earned his law degree in South Africa in 1975. He was among the last round of judicial appointments before the recent federal election.

Kim Stanton, legal director of the Women’s Legal Education and Action Fund (LEAF) applauded the professors “for bringing this judge’s appalling comments to light.

“It was with serious dismay that we learned that a judge presiding in a sexual assault trial would apparently be unaware of the considerable body of Supreme Court of Canada jurisprudence in that area of the law, that he would be not appear to be versed in the basic standards of sexual assault law, and that he would perpetuate myths and stereotypes about sexual assault complainants that should long since have been swept into the dustbin of history,” Stanton said by email. “Given all the work that has been done to address the issue of sexual violence in our society and in particular the law of consent, and given that rape continues to be under-reported by women, it is distressing that members of the judiciary continue to hold and espouse such views. Unfortunately this is not the only judge who has ignored the protections for the complainant provided by s. 276 of the Criminal Code. We are concerned that trial judges regularly ignore this protection for complainants in conducting these trials.”