CALGARY – The Canadian Judicial Council shouldn’t sacrifice Federal Court of __canada Judge Robin Camp “to remedy a social problem he did not create and a systemic reputation for which he is not responsible,” his lawyers say.
In their response to a November report from the CJC which recommended that Camp be fired, his lawyers urge that the 64-year-old judge, infamous for telling a teenage sexual assault complainant to “keep your knees together,” be allowed to hold onto his $314,000 a year job..
The CJC decision “will establish how the judiciary deals with judges who are ethical, but in the rear-guard of normative shifts and therefore blind to the social contexts behind important legal provisions,” Camp’s lead lawyer, Frank Addario, told the council in a written response to the inquiry committee which wants him fired.
“It must decide whether removal, a sanction previously reserved for the most extreme misconduct, will become a commonly used tool and, if so, what this will do to the constitutional guarantee of judicial independence.”
Addario was withering in his condemnation of the unanimous inquiry recommendation for the firing, saying the panel didn’t “consider the potential chilling effect of recommending removal for ignorant comments deemed offensive after the fact.”
The “ethical-judge-behind-the-times” is an apt description for Camp, who found himself in the eye of an ongoing societal firestorm about how sexual assault complainants are treated by the justice system.
At the CJC inquiry hearing last fall, Camp was supported by three expert witnesses, all women and feminists, who testified as to his genuine remorse, his extensive efforts at personal re-education and that his remarks during the trial were the result of what’s called “unconscious” bias.
Yet the committee, as Addario said, “gave little weight to (his) rehabilitation and education. It did not meaningfully balance the misconduct against the profound effect of recommending removal on judicial independence.”
As Addario said later in his 25-page brief, “If the Council wants to endorse … the message that ‘times have changed,’ it should do so in a fair way that recognizes the different paces at which people adopt normative shifts.” Judges, he said, work in a society with evolving values, and as with everyone else, there are always a vanguard of “early adopters, a majority that goes with the flow, and a rearguard of stragglers.”
After all, as he said, “What was once acceptable is no longer (e.g., smoking in public places) and vice versa (e.g., same sex marriage).” He urged the council to rely on “precedent, not public outrage or political climate,” to measure the judge’s misconduct.
And though Camp made multiple remarks expressing his reservations about Section .276 of the Criminal Code – the so-called “rape shield” provisions which prevent unwarranted questions about a complainant’s previous sexual activity – he nonetheless applied the law correctly in the trial.
Camp landed in the soup last year after his comments in a 2014 sexual assault trial known as R v Wagar became public; the trial itself took place in during his time as an Alberta Provincial Court judge and after he’d been elevated to the Federal Court.
At the trial, he made controversial remarks not only to the young complainant, but also to the Crown attorney and to the accused, Alexander Scott Wagar, whom he acquitted with the admonition that he and his friends should be “far more careful” and “far more gentle” with women to “protect” themselves.
In these comments, the inquiry panel found, Camp showed his disdain “for the evolution of the law of sexual assault,” which at one point he dismissed as but a product of “contemporary thinking.”
Addario also asked the CJC, which is composed of chief judges and associate chief judges from across Canada, to give Camp an opportunity to plead his case before them.
“Natural justice demands that the judge have a meaningful, personal opportunity to make his case before the body that decides his fate,” Addario said.
This opportunity to make oral submissions used to be the norm at the CJC, but six years ago, the council amended its bylaws and now it’s available only in “exceptional circumstances.
Addario pointed out that it’s not just Camp who misunderstood sexual assault laws and their provisions: In Alberta alone in recent years, at least four other judges have been overturned on appeal for relying on sexual assault myths, and in the criminal courts, judges commonly misunderstand “core” aspects of their job, such as the presumption of innocence.
“Yet most are not subject to discipline,” Addario said, “let alone removal. Their errors are dealt with on appeal.”
The point, he said, “is that public confidence will not improve with the removal of just ‘one bad apple’ where there is reason to believe there are others.”
Addario agreed Camp’s remarks sparked a huge public outcry, but said, “If public outrage was determinative of public confidence, independence and impartiality would be illusory.
“To accept this point is not to endorse Justice Camp’s admitted misconduct, but to defend the wider principle that the Council should be reluctant to respond to organized attacks on the judiciary and mindful of the chilling effect of being seen to do so.”
The CJC has only twice before in its 45-year history recommended the removal of a judge.
cblatchford@postmedia.com
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