Ottawa Citizen and the Vancouver Sun by Daphne Gilbert, Lise Gotell and Elizabeth Sheehy 15 September 2016
How much enlightenment has Justice Robin Camp experienced since his now infamous comments at a 2014 rape trial? That question is at the core of the current hearing into whether he should be removed from the bench. But recently, in expressing his remorse over his comments during the trial, he confessed, “The thing I feel worst about is the questions I asked the accused.”
What speaks volumes is that, even after the highly touted sensitivity training he’s undergone, he’s still referring to the complainant as “the accused.” Where to begin in assessing this ongoing travesty of justice?
The linguistic slip he made in defending himself at the inquiry is reflective of an underlying and depressingly persistent belief that women in sexual cases are the ones actually on trial. Indeed, during the case that gave rise to the complaint against him, Camp stepped far beyond the neutral role of judge to aggressively question the complainant as if she were the accused.
Then there’s the parade of women Justice Camp is using to try to keep his position, from his daughter’s testimony disclosing publicly that she had been sexually assaulted, to the women judges, law professors and psychologists who individually met with the judge and now vouch that he has been “re-educated” to their satisfaction.
And what about the fact that despite the money spent on his re-education, Camp has not faced the racism that also imbued this trial? The target of his bigotry was not a white, educated, articulate woman like his daughter and his many woman defenders, but a street-involved, homeless Indigenous teen whom he treated like garbage. He was also contemptuous of the woman Crown attorney, who valiantly reminded him that he was bound by the law of the land, and that his views were antiquated. To her, he brutally retorted, “I hope you don’t live too long, Ms. Mograbee.”
Camp demonstrated an utter ignorance of the law when he argued that the complainant was obliged to forcefully communicate her lack of consent. He insisted that the accused is entitled to assume consent, in defiance of the Supreme Court decision of 1999 that a complainant must have instead communicated active consent. In order to raise a defence of honest but mistaken belief, an accused person must have taken reasonable steps to ascertain consent – a provision Camp characterized as “extreme.” And when the Crown reminded him of rape shield laws barring the use of previous sexual history to argue that someone is more likely to have consented and to lie about it, Camp protested that these restrictions are “unfair” and “extremely incursive.”
(Now we have news reports of another Alberta judge, Michael Savaryn, whose remarks during a sexual assault case are being reviewed by a senior judge for his apparent ignorance of the law of consent and sexual assault. We have a big problem.)
Canadian sexual assault law has undergone significant changes in the past 30 years, the result of feminist advocacy. Gender equality is firmly embedded within the law that Camp was duty-bound to apply. But Justice Camp defended his evident ignorance by claiming that he hadn’t received any training on sexual assault law. This despite the fact that the new judges’ school he attended in 2013 included content on sexual assault, and he had a generous professional development allowance that he could have used to address his knowledge gap. Moreover, the transformations in sexual assault law in recent years have been the subject of endless case law, media commentary and public scrutiny. In criminal law terms, we call this “wilful blindness.”
Given the importance of judicial independence, it should be extremely difficult to remove a judge from office, and it happens only rarely. But when the CJC Inquiry counsel Marjorie Hickey asked Camp if he thought women’s confidence in the judiciary would be undermined by his comments, he responded, “I do.” No amount of sensitivity training can undo this. Only removing Justice Camp from the bench can restore public confidence in our judiciary.
Daphne Gilbert is an associate professor in the Faculty of Law, University of Ottawa. Lise Gotell is a professor of Women’s and Gender Studies, University of Alberta. Elizabeth Sheehy is a professor in the Faculty of Law, University of Ottawa.