Tag Archives: Elaine Craig

Ewanchuk (and merit) redux: R v Wagar & Holding Judges Accountable for their treatment of sexual assault complainants

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. 

http://www.cbc.ca/news/canada/edmonton/alberta-premier-accused-of-conflict-in-tobacco-case-1.1222056
http://www.cbc.ca/news/canada/edmonton/premier-alison-redford-cleared-in-ethics-investigation-1.2451263

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.”

  • November 3

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 Redfordmond (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.

 

-sonia

Elaine Craig in the Globe & Mail and elsewhere.

In recent months there has been an animated public conversation around issues of sexual violence. Many people feel that the increased media attention on sexual violence is a positive thing, because it creates a much-needed focus on a crucial problem. Others have expressed concern that, in fact, this public attention reflects a kind of “rape hysteria” – a “moral panic” which is misrepresenting rape as an epidemic.

via Of course rape and sexual violence are epidemic. They touch most families – The Globe and Mail.

Some of Elaine’s other work has also been noted in the G&M and the Law Times recently – her paper Examining the Websites of Canada’s ‘Top Sex Crime Lawyers’: The Ethical Parameters of Online Commercial Expression by the Criminal Defence Bar is referenced here (G&M) and here (Law Times).  She will be at Osgoode  to discuss this work Friday January 30th.  Watch this space!

 

 

 

Craig on Carline at Jotwell: Vulnerability, Sex Work, State Responses

Elaine Craig (Dalhousie) reviews Anna Carline‘s article Of Frames, Cons and Affects: Constructing and Responding to Prostitution and Trafficking for Sexual Exploitation (in a special issue of Feminist Legal Studies, 2012 Vol 20. (3)) over at Jotwell.  Enjoy the review and the article.

Anna Carline’s piece, … was of particular interest to me. Carline’s contribution interrogates the invocation of the vulnerable subject as a justification for state intervention with respect to sex work. She draws upon Judith Butler’s recent work theorizing life’s precarity in order to examine the race, class, and gender based differences in the distribution of vulnerability perpetuated by the Policing and Crime Act 2009 in England and Wales. Carline uses Butler’s framework to highlight how official discourses surrounding the adoption of this legislation framed the State as concerned with recognizing and protecting the vulnerable sex worker. This is a strategy that, according to Carline, ultimately resulted in reforms reflective of a law-and-order/morality approach to the sale of sex rather than a victim-centered approach.

via Forsaking Vulnerable Sex Work – Jotwell: Equality.

NIP on SSRN from Elaine Craig: The Case against TWU's Law School [now updated, with letters]

[Update, thank you very much to Bev Baines of Queens, who sent along the (public) letters referred to below].

Elaine Craig (Dalhousie) (learn from her here, in a mini lecture on Understanding Sexual Assault Law) has posted The Case for the Federation of Law Societies Rejecting Trinity Western University’s Proposed Law Degree Program (forthcoming CJWL) to SSRN, here:

Should Canada have a law school that discriminates against gays and lesbians? Would the governing bodies of the legal profession in Canada approve a law school that prohibited mixed race sexual intimacy? Should a self-regulating legal profession require that the policies of the institutions that produce this country’s next generation of lawyers respect equality and academic freedom? Trinity Western University (TWU), a private Christian school in British Columbia is posed to become Canada’s first Christian law school. Trinity Western discriminates on the basis of sexual orientation in both its hiring and admissions policies. It has also been found to violate academic freedom.

Brief Background: Canada’s private Christian Universities, Trinity Western (perhaps familiar to you from British Columbia College of Teachers v TWU, 2001 SCC 31, here) has applied to open a law school, as this blog noted here.  See here for their announcement about the law school plan.

Last week, the Canadian Council of Law Deans wrote to the Federation of Law Societies of Canada opposing the new school, partly although not solely because the school prohibits students and faculty from engaging in homosexual behaviour, through a policy they ground in religion. [Addition: Here is the letter, excerpt below:

The covenant specifically contemplates that gay, lesbian or bisexual students may be subject to disciplinary measures including expulsion. This is a matter of great concern for all the members of the CCLD. Discrimination on the basis of sexual orientation is unlawful in Canada and fundamentally at odds with the core values of all Canadian law schools.
We would urge the Federation to investigate whether TWU’s covenant is inconsistent with federal or provincial law. We would also urge the Federation to consider this covenant and its intentionally discriminatory impact on gay, lesbian and bi-sexual students when evaluating TWU’s application to establish an approved common law program.

]

 

See link to Vancouver Sun story, since the letter does not appear to be available online). [Also provided via the intervention of Bev Baines, here is the reply from the Federation to the CCLD, excerpt below:

When my colleagues and I met with you in Kingston on November 9, 2012, we indicated that determinations of the Approval Committee would be referred to the law societies for consideration. On verification, we have determined that in fact the Implementation Committee Report makes clear that the mandate of the Approval Committee is to make the final determination on compliance for both existing and proposed law degree programs and to post its final report respecting each such program on the Federation website in accordance with the Implementation Committee Report. I regret any confusion we may have caused on this point.
The national requirement, approved by law societies, does not contemplate or authorize an inquiry into the admission philosophy of a law school program, either existing or new, or an investigation into whether the admission policies of an educational institution are consistent with federal or provincial law. The only reference to admissions policy in the national requirement pertains to the minimum number of years of post-secondary instruction required to be completed prior to entry to law school

TWU have asserted their right to exemption from provincial and federal law for religious reasons.  The Law Deans, let it be said, know the law.  Their concerns are beyond legality – one cannot just open up a law school here.  New law schools need to be approved by the Federation of Canadian Law Societies and the relevant provincial Ministry – more than just legality can go into that decision (see, for instance, this newspaper story about the approval of Lakehead’s new law school).

 

 

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Book Giveaway Winner! & Next Contest!

Thanks to those of you who entered.  The random number generator coughed up Nooreen Bhanji’s entry.  She’s a freshly minted (2011!) grad of Osgoode Hall now articling at Torys LLP who clearly likes non fiction -she says that the last book she read was “The Big Short” by Michael Lewis. Now she will be able to spend her non working hours (what?) reading something a little bit further in the past but just as relevant to the future.  Thanks to all to entered.

Moving right along, I seem to have a credit at UBC Press, and they have just released  Troubling Sex: Towards a Legal Theory of Sexual Integrity by Dal’s Elaine Craig. Sample chapter available here.

Blending feminist theory with queer theory, she advances an iconoclastic approach to law and sexuality that has the power to transform both theory and practice.

So, once again, if you’re interested, put your name in the comments OR on the IFLS FB page. I’ll try to take care of this one within the week.  Cannot guarantee holiday delivery, though, since this one isn’t actually in my office yet.