This is a bit of a must read (*i am not describing my own post as a must read! i mean, the work and stories i’m linking to!), and apologies for the ways that I have made it a series of links. Here’s the short story: Judge makes comments repeatedly throughout a sexual assault trial indicating ignorance of and outright hostility to Canadian law of sexual assault, and “rape shield” provisions. Acquittal overturned on appeal but without many reasons. Fabulous law profs write op eds and file official complaint with Canadian Judicial Council. Within days the Court (!the Court) on which the judge now sits promises he won’t be sitting on any sexual assault cases, indicates that he’ll take gender sensitivity training at his own expense, and quotes the judge’s own apology. Investigation ongoing.
Interesting parallels and differences here with the saga around complaints about the language used by Alberta Court of Appeal Justice McClung in Ewanchuk (which i will not rehash here, but you can get a flavour from Backhouse, Constance B., The Chilly Climate for Women Judges: Reflections on the Backlash from the Ewanchuk Case (2003). Canadian Journal of Women and the Law 15:1 (2003) 167-93. Available at SSRN:http://ssrn.com/abstract=2283981).
timeline of recent events
late additions in green: i think that these things are worth adding to the timeline. See “merit”.
2011: Charges laid in the sexual assault at issue in R. v. Wagar.
March 2012: Judge Camp’s appointment announced. Alberta premier is Alison Redford.
December 2013: Premier Redford is cleared after an ethics panel reviews the awarding of a tobacco litigation contract that could be worth millions in fees, to her ex-spouse’s law firm, Jensen Shawa Solomon Duguid Hawkes of Alberta. Prior to his elevation, from 2008-12, Judge Camp was managing partner of this law firm.
2014: first trial in R. v. Wagar
June 26, 2015: Judge Camp becomes Justice Camp of the Federal Court, approximately one month before the election campaign begins for the October 19, 2015 Federal Elections.
“Judge Camp commenced his judgment by notifying the accused that he was being acquitted, and went on to deliver a lecture to the accused:
The law and the way that people approach sexual activity has changed in the last 30 years. I want you to tell your friends, your male friends, that they have to be far more gentle with women. They have to be far more patient. And they have to be very careful. To protect themselves, they have to be very careful.
The law in Canada today is that you have to be very sure before you engage in any form of sexual activity with a woman. Not just sex, not just oral sex, not even just touching of a personal part of a girl’s body, but just touching at all. You’ve got to be very sure that the girl wants you to do it. Please tell your friends so that they don’t upset women and so that they don’t get into trouble… (Appeal Record, at p 427).
This passage sets the tone for Judge Camp’s reasons for decision: women (or “girls”) are blameworthy, not to be trusted, and men must be protected from them.”
Alice Woolley of UCalgaryLaw regarding what the legal system should do in such cases, also on the Calgary Faculty Blog (ABlawg).
I argue that legal decisions go from being wrong to wrongful when they demonstrate both disrespect for the law and a failure of empathy in regards to the persons who appeared before the court. In my opinion, Judge Camp’s decision falls within this category; it demonstrates both disrespect for the law governing sexual assault and a pervasive inability to understand or even account for the perspective of the complainant…..
One response to a wrongful decision is censure of the judge by a higher court. That did not happen here. The Court of Appeal’s reasons, while clear and unequivocal in overturning Judge Camp’s decision, are also temperate and measured. They do not criticize the trial judge himself, or suggest that his decision had crossed from the wrong to the wrongful…..
A judge who merely disrespects the law acts very badly. And a judge who lacks empathy does so as well. But it is the judge who does both, who disregards the law and the people who appear before him or who are affected by his judgments, who acts wrongfully, and whose judgments properly warrant anger and disgust.
- November 6. op ed (the date is confusingly listed) Globe & Mail, written by Dal’s Elaine Craig and Assoc. Dean Woolley (interestingly, in this G&M article, the ED of the CJC seems to be saying that he used his power to initiate an inquiry after reading that op-ed – thus claiming that the official eleven page complaint filed by the four law professors was apparently not the genesis of the investigation – rather, the op-ed that two of them wrote and had published in the Globe worked on its own).
- November 9, 2015, official filing of an 11page complaint to the Canadian Judicial Council about Justice Camp’s conduct, by professors Woolley and Koshan of the University of Calgary law school, along with Profs Jocelyn Downie and Craig of the Schulich School of Law at Dalhousie.
- Also on November 9, 2015, the story starts to diverge a bit from what you might have expected, given Ewanchuk. The Federal Court issued a statement saying in part:
” no new cases will be assigned to Justice Camp that involve issues of sexual conduct or any matter that would raise comparable issues. As well, Justice Camp has agreed to recuse himself from any such cases currently assigned to him”.
- Justice Camp, through the court, offered an apology (in some newspaper articles, it sounds like these were two separate news releases, but in fact, there is just one):
My sincere apology goes out, in the first place, to the young woman who was the complainant in the matter. I also apologize to the women who experience feelings of anger, frustration and despair at hearing of these events.
- Later in the day, still November 9, Alice Woolley again, here, on the apology:
Woolley suggests Camp still doesn’t get it. “Given one of the issues here is his unwillingness to apply the law, I am concerned about the extent to which the statement frames this as an issue of gender sensitivity. His apology is directed toward women, but the fair administration of justice is a concern for every Canadian.”
As a slight aside (although I’m sure this will be asked by more people soon), here’s blogger and Ontario lawyer Lee Akazaki on November 10th (today) asking why the Court is issuing such a statement in the first place (I’m not sure if this is unprecedented, but it sure feels that way). See here.
I’ve just come back from a workshop in the UK about appointing judges and diversity on the Bench. I also spoke a bit about Lori Douglas’ case – reading the hard work of these amazing Canadian Feminist legal academics in bringing this situation into the open makes me wonder again why on earth we keep getting asked about merit versus diversity when it should be quite clear that we haven’t quite got a handle on merit yet…. (so, last note, from 2013 in the Harvard Business Review the gender focused article, Why Do So Many Incompetent Men Become Leaders? by Tomas Chamorro-Premuzic. Justice Camp seems to have practiced business law prior to his elevation to the Bench by the Provincial government of Alison Redford
mond (last name corrected thanks to Eric Adams, who gently pointed out my error, without any reference to ignorant Ontarians or anything!) Camp’s apology is in fairly stark contrast to his language in the transcript, as revealed in the Crown factum. That’s some good and speedy sensitivity training.