The Robin Camp case: Who judges judges?

Justice Robin Camp’s mishandling of a rape case raises questions about the training and accountability of Canadian judges

Federal Court Justice Robin Camp arrives at a Canadian Judicial Council inquiry in Calgary, Alta., Tuesday, Sept. 6, 2016. (Jeff McIntosh/CP)

Federal Court Justice Robin Camp arrives at a Canadian Judicial Council inquiry in Calgary, Alta., Tuesday, Sept. 6, 2016. (Jeff McIntosh/CP)

Like the sort of accused Justice Robin Camp had seen so many times in his courtroom, his fingers and thumb fiddled with the exhibit binder pages as he spoke before the hearing into his own misconduct. Each day, his wife and daughter sat quietly and supportively in the row behind him. He was contrite, stating that it was “unforgivable” to ask a sexual assault complainant in a 2014 trial why she didn’t keep her knees together. “Canadians deserve better of their judges,” he told the inquiry.

He stumbled, mistakenly calling the complainant “the accused,” as he had during the trial. But unlike drunk drivers and spouse batterers who once appeared before him, Camp’s acknowledgement of wrongdoing and pledge to do better in the future might help him escape penalty.

Even if the Canadian Judicial Council (CJC) winds up urging the ouster of a once crude-talking criminal trial judge, it would punish a Justice Camp who no longer exists. That was the argument from his lawyer, Frank Addario, who gave the inquiry his two-Camps theory: one, a judge who ignorantly fell for rape myths and stereotypes with remarks even his daughter publicly called disgraceful, and the other, a “future Justice Camp” who is repentant, vastly improved and self-vigilant after months of counselling.

Besides this theory of a purported Robin Camp 2.0, there’s another reason that controversial old judge no longer exists. Months before Stephen Harper’s government was voted out last year, it upgraded Camp from the Alberta provincial court to the Federal Court of Canada. In that new incarnation, he won’t hear further criminal trials of women alleging rape (though he may deal with immigrants and refugee claimants fleeing sexual violence).

Related: What’s at stake in the case of Justice Robin Camp

But going by history, none of these Robin Camps may have to worry much. Judges have long been loath to recommend removal of their misbehaving fellows, letting their penitence and/or good reputations offset their deeds—and if at risk of getting pushed off the bench, they instead jump. The last time a judge’s comments provoked publicized complaints to the judges’ council, contrition and pledges to seek sensitivity training proved enough to keep it from going to the sort of public inquiry that Camp, 64, faced over five September days in the Westin Calgary hotel’s basement meeting room.

Beyond what has been thrust before the CJC, reams of case law and newspaper columns have been filled with the examples of jurists who bungled the ideas of sexual consent or post-assault behaviour, and go on to preside and rule again. Despite those past failures and ever-increasing awareness of prejudices, judicial education in Canada is in such a state that Camp’s lawyers sought ignorance as a defence, maintaining he never learned how to run a sex assault trial.

There have been, it should be acknolwedged, recent judgments that draw praise from women’s groups, such as the Mandi Gray rape case ruling by Ontario Justice Marvin Zuker, whose ruling cited poet Maya Angelou while flatly denouncing rape myths. But advocates worry women are afraid to pursue sexual violators in court, given how many hands risk mishandling a case—reporting police officer, Crown prosecutor and judge. “It is not guaranteed that a woman reporting assault will receive the kind of respect and dignity that she ought to be treated with,” said Kim Stanton, legal director of Women’s Legal and Education Action Fund, an intervenor in the Camp inquiry.

Outside the legal community, Camp’s admissions have been greeted with dismay. But the case has also resurrected long-unresolved questions that go to the overall health of the country’s judiciary. Are Canada’s judges properly trained? Is the secretive system of judicial councils suitably dealing with judges whose behaviour crosses the line? Critics note that lawyers can be disbarred, doctors and other professionals can have their licences revoked through well-established if imperfect systems that give the public at least a partial sense of confidence and closure. Can our judges be trusted to judge one another?

The string of Canadian sexual assault law reforms on matters like consent and the irrelevance of a complainant’s sexual history began in 1976, according to an academic paper commissioned for the Camp inquiry. Camp, at that point, was fresh out of law school in his native South Africa. In 1999, when a landmark Supreme Court of Canada ruling determined “implied consent” is no defence in a sexual assault case, Camp began practising law in Alberta, mostly business litigation. He kept out of criminal law until March 2012, when he was appointed to provincial criminal court. He was named head of Calgary’s domestic violence court a year later.

In June 2014, Camp took on the second sexual assault trial of his career, that of Alexander Scott Wagar, a homeless man accused of sexually assaulting a homeless 19-year-old Cree woman at a party, atop a washroom sink. When interrogating the complainant, Camp asked, “Why didn’t you just keep your knees together?” and “Why didn’t you just sink your bottom down into the basin so he couldn’t penetrate you?” Elsewhere in the trial, he remarked that “sex and pain sometimes go together… not necessarily a bad thing.” He appeared to question Canada’s rape laws, and he urged the accused male to tell his friends they have to be “more gentle” and patient with women, to “protect themselves.”

After Camp acquitted Wagar, the Alberta Court of Appeal last fall ordered a retrial, writing that the judge’s decision suggests he misunderstood aspects of sexual assault law and bought into discredited sexual stereotypes and myths. He’s not the first judge to provoke outrage once his conduct was revealed. But in the world of judicial tenure and near-untouchability, he’s the first federally appointed judge whose mishandling of a sexual assault trial has placed his job on the line.

For decades, Canadians have relied on judges to police each others’ behaviour. It’s a system that operates mostly away from the public eye, with the majority of cases getting dismissed and only complaints of egregious misconduct triggering hearings. The opaqueness stems in part from the principle of judicial independence. The mere spectacle of a judge on trial is thought to weaken judicial authority.

Related: Eight things we learned about Judge Robin Camp

But by the late 1960s, Parliament and provincial legislatures could see that not every judicial appointee was proving fit to serve. The solution: a patchwork of provincial and federal judicial councils, which assess complaints about judges’ conduct without exposing them to unnecessary interrogation. It is, on its face, the ultimate exercise in self-regulation. Most councils are comprised largely, if not entirely, of judges. Most keep the identities of judges in complaints secret unless evidence of misconduct warrants a hearing. If a complainant is unhappy with a council’s decision, he must appeal to the courts, where it’s assessed by yet another judge.

The CJC, which has authority over federally appointed judges, receives on average 160 new complaints per year. Yet since 1990, only 11 have seen the light of a public hearing, where inquiry panels assess whether a judge’s conduct has so undermined public confidence that they’re incapable of holding the office. Twice has the inquiry committee and then full council recommended removal, but in both cases the judge resigned before Parliament could pull the trigger.

Rocco Galati, a Toronto lawyer who has challenged CJC decisions in federal court, dismisses the model as a “mega-placebo” meant to make the public believe the judiciary self-regulates in the way doctors, engineers and lawyers do. The key difference, he notes, is that other regulatory bodies ultimately answer to entities outside their profession—that is, the courts. “But what if I complain about a Supreme Court of Canada justice?” says Galati. “I’d take judicial review from the Federal Court to the Federal Court of Appeal to back where? To the Supreme Court of Canada. In any other context, this would not be tolerated.”

It can be argued that councils’ murky workings don’t serve judges well either. Take the CJC inquiry into Lori Douglas, a former Manitoba Court of Queen’s Bench justice whose husband posted nude photos of her online. The process bogged down after her lawyers challenged the panel’s right to view the pictures, while the complainant fought for standing as a respondent. In March 2015—after four years and $3 million in court costs—Douglas took early retirement. The CJC adjourned its unfinished hearing.

The derailment of the Douglas case stirred doubts about the system within legal circles. But it’s the fraught issue of sexual consent that took the conversation to the public square. Camp is the latest in a line of older, mostly male benchers accused of mishandling sexual assault cases, dating back to John McClung, an Alberta Court of Appeal justice who in 1999 upheld an acquittal on the grounds of “implied consent.” The Supreme Court overturned the decision in which McClung infamously noted the 17-year-old complainant did not present herself “in a bonnet and crinolines.”

McClung was never brought before the CJC. But women’s rights activists hoped that decision would put to rest the idea that a woman’s silence, attire or failure to resist an assailant could be interpreted as consent. “There is no excuse for a judge in this country to not know that case when conducting a sexual assault trial,” says Stanton. (Camp said he’d read and reread this case before the Wagar trial.) Five years ago, Manitoba Court of Queen’s Bench Justice Robert Dewar let a sexual assailant off with a two-year conditional sentence, excusing him as a “clumsy Don Juan.” The CJC found Dewar’s remarks outdated and unacceptable, but after his apology, allowed him to keep his job without facing an inquiry. It highlighted the peculiar inflexibility of the council mandate: as with Camp, the only penalty it can recommend is removal from office.

That may change. In the wake of the Douglas fiasco, the CJC sought out fixes from the legal community. And this summer, the federal Justice department invited public input on a range of questions, from whether complainants should be given more of a role in the process to how much secrecy should shroud complaints. A spokeswoman for Justice Minister Jody Wilson-Raybould said officials are analyzing submissions.

The Canadian Bar Association has suggested a suite of reforms, including bringing lay people into the process more, which the council seems open to trying. Two lawyers sat along with three judges on Camp’s inquiry panel, while the CJC took the exceptional step of allowing women’s groups and sexual assault centres to intervene with written submissions. This may provoke pushback from judges. In the latest issue of Provincial Judges’ Journal, Judge Derek Redman of Alberta asks in a cover story: “Is the (complaint) process at risk of being hijacked by public interest groups?”

The Canadian lawyers’ group also proposed widening the range of sanctions against judges who step out of line. “I don’t think it would compromise the judge’s independence that he or she has been disciplined by this governing body,” says Gavin MacKenzie, who chaired the lawyers’ task force. Ontario’s provincial council, he notes, can reprimand judges, suspend them and—perhaps most important—order them to take special training as a condition of staying on the bench.

On paper, at least, there is no shortage of training opportunities available to judges—whether new or experienced, federal or provincial. Canada is “a world leader,” in fact, declares the National Judicial Institute (NJI), the lead organization for Canadian judicial education since 1988.

The NJI offers courses (online and in person) for federally appointed judges, everything from jury procedures to decision writing. Material emphasizes social context awareness—the idea that judges must identify and adjust their unconscious biases, so rulings are never clouded by prejudice or stereotype.

Although NJI’s courses are also available to lower court judges appointed by provinces and territories (which Camp was in 2014), the Canadian Association of Provincial Court Judges has its own programs, including an annual seminar for new judges. On its website, the association boasts it “pioneered social context education for judges in Canada.”

Camp attended a new judges’ seminar with key readings that could have helped him avoid his errors. He also went to semi-annual Alberta judge seminars, and was granted time off and allowances for further education. And yet, the inquiry’s agreed statement of facts asserted he received zero training on how to conduct a sexual assault trial. In closing submissions, his lawyer was even more blunt: “Justice Camp had an education problem, not a character problem.” “He failed to educate himself about social context, internalize the concept of mythological thinking, and interrogate his beliefs to determine the extent to which he himself had internalized these pervasive myths,” the submission continues. “But it was not deliberate and the evidence shows his particular and individual failure is systemic and widespread.”

Although it certainly doesn’t diminish what he said—or the damage done—he may have a point. “People would get this situation wrong if they thought this was just a one-off occurrence,” says Kathleen Mahoney, a law professor at the University of Calgary. “It’s obvious that this is an ongoing issue, and the issue is one of education.”

In the mid-1980s, Mahoney pushed to inject social context training into mainstream judicial education. “Some judges felt it had the potential to interfere with their judicial independence,” she says. “But judicial fairness does require knowledge of the social context. Judges often tend to be from privileged backgrounds and are quite insulated from the realities of people whose lives don’t cross paths with their own: Indigenous people, women, people living in poverty, racial minorities, immigrants, etc.”

Here’s the hurdle, though: like all aspects of judicial education, social context training is not mandatory. “Judges are not employees in the normal sense,” says Stephen Pitel, a law professor at Western University. “The appointment is, in a sense, a without-strings appointment. Invariably, the judge would say yes to training and go and do that. But the wrinkle is that the judge can say: ‘Thanks, but no thanks,’ and the government wouldn’t be able to say: ‘Well, it really wasn’t a suggestion. We’re insisting.’”

That needs to change, says Nathalie Des Rosiers, dean of common law at the University of Ottawa. “I think this case is a bit of a wake-up call that all new judges, no matter which court he or she is sitting on, should have access to social context training,” she says.

Deborah Smith, a Nova Scotia assistant chief justice on Camp’s inquiry panel, scrutinized Camp’s claim he lacked training. On top of the reading materials and courses he had access to, he had his bench peers and an expansive judicial library at his fingertips, she said. “I think it’s become apparent that I didn’t know what I didn’t know,” Camp conceded.

Amid Camp’s time-out from Federal Court hearings, he received personal mentoring and counselling from a leading judge, a feminist law professor and a psychologist expert in gender biases and the judiciary. All three women testified Camp earnestly strived to root out his unconscious biases and become self-vigilant. “I wish every judge could have an education as good as that, and I wish they could make it before they make a mistake like the one that Justice Camp made,” says Emma Cunliffe, a University of British Columbia law professor.

The Camp inquiry panel will likely take weeks to write its report. Of the five times those committees have recommended removal, twice the full CJC subsequently reversed and let the offending judge stay. While the council is not in the habit of making any judge a scapegoat for the broader system, the Camp episode may have already shown judges what their community and the public find unacceptable, Cunliffe says. “If what we’re interested in is helping other judges to understand, then the process is valuable in that sense. I’m not sure we need to stop Justice Camp to get the word out,” she says.

If judges have been watching and taking notes, there’s evidence some still have more to learn. This summer, Alberta Queen’s Bench Justice Juliana Topolniski overturned provincial judge Michael Savaryn’s ruling that found a 15-year-old boy not guilty of sexually assaulting a 15-year-old girl, despite a videotape that showed the girl’s attempts to resist. “The requirement that a complainant raise the hue and cry has long since passed into the mists of time,” Topolniski wrote. Savaryn’s superior, Chief Justice Terrence Matchett, announced a review of the judge’s conduct and education issues.

This spring, the Alberta judges’ conference also held two full days of sexual assault law seminars, including focus on discarded myths. That came two years too late for Camp—but it does come before November’s scheduled retrial of the Wagar case. The complainant who was asked about her knees told the Camp inquiry the judge’s comments left her feeling guilty and confused. But, she testified, “My biggest worry is about the victims that will never come forward because of what they read in the newspaper about Justice Camp’s words.”

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