The recent Report and Recommendation of the Inquiry Committee examining Justice Robin Camp’s conduct sends a strong message.
It says to the Canadian judiciary and the public at large that a stereotypical, gender-biased and myth-based approach to sexual assault law will not be tolerated. The report and recommendation is a welcome confirmation that judges must apply sexual assault laws in a manner that ensures the values those laws promote and protect are respected, and a hopeful sign that changes in the criminal justice system will be made, allowing victims of sexual assault to come forward and report, knowing their complaints will be heard by an impartial judiciary that promotes the principles of equality. The inquiry committee took pains to review Camp’s questions and comments in the context they were made during the Wagar trial, and concluded they were not merely “insensitive and inappropriate,” as suggested. Rather, the comments and questions evidenced “an antipathy towards laws designed to protect vulnerable witnesses, promote equality, and bring integrity to sexual assault trials” and revealed Camp engaged in a gender-biased and myth-based analysis.
The application of this type of thinking is evident in the oft-quoted “why couldn’t you just keep your knees together?” question posed by Camp to the complainant during trial. This question was part of a series of questions Camp asked the complainant after she finished testifying. Camp asserted these questions were asked “in the course of pressing some legal concerns,” namely whether the sexual encounter was consensual.
After reviewing the questioning in its entirety, the inquiry committee concluded he was not seeking to obtain relevant evidence “but rather was trying to make a point — either that the complainant was to blame for the assault because of her lack of resistance or that her claim of non-consensual sex was not plausible because of her lack of effective resistance.” The resistance myth relied upon by Camp is the very type of myth-based thinking that has permeated the criminal law of sexual assault for decades and resulted in a lack of confidence in the criminal justice system by sexual assault survivors. These survivors are reluctant to come forward and report their assaults because they fear they will end up being “on trial,” having to defend themselves by answering questions about their sexual history, the clothes they were wearing, their alcohol consumption and whether they encouraged their assailant or “led him on.”
Recognizing Camp’s line of questioning and comments for what they were is a positive development for an area of law that continues to be infused with gender bias, stereotypes and rape myths, despite a concerted effort by Parliament and the courts to eradicate them. The report and recommendation reinforce the need for the judiciary to ensure the law of sexual assault is applied in a manner that protects and promotes the underlying purpose, which is to rid the law of discredited sexist stereotypes and myths.
After finding Camp engaged in misconduct, the inquiry committee considered whether to recommend his removal from the bench. In doing so, it emphasized the focus must be on whether the misconduct undermined public confidence in the judiciary. This public confidence must be assessed from the point of view of the “reasonable person.” In defining the “reasonable person,” the inquiry committee rightly concluded the “reasonable person” must include the perspective of survivors of sexual assault specifically, and marginalized women generally, as the groups most likely to be affected by Camp remaining in office.
This is important because women and girls are overwhelmingly the victims of sexual assault and are faced with a criminal justice system that has failed female sexual assault survivors for generations by allowing myths, prejudices and stereotypical thinking relating to sexual assault against women to prevail. As the inquiry committee noted, judicial disrespect for or antipathy toward the law harms the rule of law, which is especially harmful in this case, where there is a long history of systemic discrimination embedded in substantive sexual assault law and the treatment of sexual assault complainants. This systemic discrimination resulted in a lack of confidence in the criminal justice system on the part of female sexual assault survivors.
Although lawmakers have expressly acknowledged the problem and acted to correct it, discriminatory attitudes persist. The result is the continued lack of confidence in the criminal justice system by sexual assault survivors and the underreporting of sexual offences. This shows that public confidence in this aspect of the justice system needs to be enhanced. It is only through the appreciation of the historic, systemic discrimination embedded in sexual assault law that the inquiry committee could recognize the significant damage done by Camp’s misconduct to public confidence in the judiciary.
Judges play a significant role in the judicial system and hold an exalted role in our society. To allow a judge to display antipathy or disrespect for the values that a law is designed to achieve not only undermines the law itself but results in a far-reaching discriminatory impact that can be felt across Canadian society as a whole. As the inquiry committee stated, “a judge must be held accountable for the effects of his misconduct on those who appear before him, and on the public which entrusts him with the task of fairly and impartially applying the law.”
Given Camp’s explicit resistance to changes in the law meant to protect vulnerable witnesses, promote women’s equality and bring integrity to the way in which sexual assault cases are dealt with in the justice system, the inquiry committee concluded no amount of education could fix the damage done to public confidence in the judicial system by his conduct in the Wagar trial. The Canadian Judicial Council should take the inquiry committee’s recommendation that Camp be removed from the bench to the Minister of Justice and allow for the confidence in the judiciary by sexual assault survivors be enhanced.
Alison Gray is a litigation partner at Bennett Jones LLP in Calgary and was co-counsel for the Intervenor Coalition, which included LEAF, at the Camp Inquiry. Her practice is primarily complex commercial litigation but includes constitutional and aboriginal law.