JUDICIAL MISCONDUCT IN THE SEXUAL ASSAULT TRIAL.

• Author: Benedet, Janine
• Position: Canada

In November 2015, four law professors submitted a complaint to the Canadian Judicial Council (CJC) about comments made by Federal Court Justice Robin Camp during a sexual assault trial he presided over when he was a member of the Alberta Provincial Court. (1) That complaint, which was ultimately overtaken by a formal complaint from the Attorney General of Alberta, (2) led to a public hearing and a recommendation for Justice Camps removal from the bench. (3) In March 2017, Justice Camp resigned from the Federal Court of Canada.

This article considers the judicial discipline against Justice Camp in the context of three related claims that he made, through his legal counsel, in attempting to resist his removal from the bench. First, he argued that while some of the remarks he made used insensitive language, they did not disclose gender bias or sexism. (4) Second, he claimed that all of his impugned interactions related to legally relevant issues and did not disclose an unwillingness to follow the law. (5) Third, his lawyer asserted that the attitudes and inaccuracies he was accused of are widespread among Canadian judges in the area of sexual assault and that it was unfair scapegoating to punish him alone. (6) In this article I consider these interrelated claims and use the discipline of Justice Camp, and the trial over which he presided, to explore how sexist myths and stereotypes can enter the sexual assault trial notwithstanding the many legal reforms that were designed to root them out. I also consider what "judicial misconduct" means in this context and what, if anything, the removal of a single judge from his position contributes to the larger project of pursuing sex equality in the criminal trial process.

This article is structured as follows. In Part I, I summarize the chronology of events that led to Justice Camps resignation and set out what ultimately happened in the case of R v Wagar that gave rise to the comments at issue. I also provide a brief overview of the process for the discipline of judges in Canada. In Part II, I detail the history of rape law reform in Canadian criminal law and recall the kinds of sexist myths and stereotypes that this reform was designed to address. In Part III, I argue that despite the reforms, there remain ample opportunities for these attitudes to operate in the modern sexual assault trial. In Part IV, I analyze the transcript of the first trial in Wagar and demonstrate that the approach of Justice Camp reflected both legal errors and an analysis rooted in discrimination and stereotypes, rather than merely an insensitive handling of otherwise relevant evidence. I argue that this conclusion is not undermined by the accused's acquittal in a second trial before a different judge. Finally, in Part V, I consider the question of what consequences ought to flow from this kind of judicial mishandling, and reject the argument that this was a case for more and better education of a single judge or all judges, rather than for removal from the bench.

It is important at the outset of this article to identify my role in this process. I was retained as an expert witness by the Presenting Counsel to the Canadian Judicial Council Committee that considered the complaint. My report was my own opinion, but I am not merely an observer of these proceedings--I played a role, however small, in the Committee's process and may have influenced its recommendations in some fashion. Using publicly available documents (including the statements of complaint), this article draws on that opinion, Justice Camp's response to the complaint, and the trial transcript in Wagar in order to engage directly with the legal issues raised in the case. (7)

1. CHRONOLOGY OF EVENTS

   The conduct that gave rise to the initial complaint against Justice Camp occurred while he presided over the sexual assault trial of Alexander Wagar in June 2015. With the complainant as the sole Crown witness, and three defence witnesses including Mr. Wagar, the trial focused on whether the Crown had proven that the complainant did not consent to the sexual activity, and whether Mr. Wagar had an honest but mistaken belief that the complainant had consented to the sexual activity. Justice Camp acquitted Mr. Wagar, and the Crown appealed to the Alberta Court of Appeal. In October 2015 the acquittal was overturned, and the appeal court ordered a new trial.

   In November 2015, the initial complaint regarding Justice Camp's conduct was made to the CJC, followed by a complaint by the Attorney General of Alberta pursuant to section 63(1) of the Judges Act. The complaints alleged that Justice Camp communicated "antipathy towards legislation designed to protect the integrity of vulnerable witnesses" when he commented that section 276 ("the rape shield law") should be interpreted "narrowly" (8) and suggested that it "does hamstring the defence". (9) The complaint also alleged that Justice Camp relied upon rape myths and stereotypes, questioning why the complainant had not reported earlier, (10) why she did not fight or react to the assault, (11) and why she did not "just keep her knees together". (12) Additionally, Justice Camp allegedly commented on the complainant's character, suggesting she may have falsely accused Mr. Wagar as a form of revenge, and in a manner that suggested she likely consented. (13)

   The Inquiry Committee released their final report in November 2016, unanimously recommending to the CJC that Justice Camp be removed on the basis that his "conduct is so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role that public confidence is sufficiently undermined to render the Judge incapable of executing the judicial office." (14)

   The recommendation garnered significant media attention and public debate. As media headlines debated whether removal was warranted, or whether such systemic biases and attitudes about sexual assault could be remedied through judicial education, Mr. Wagar was tried for the second time before Assistant Chief Judge Jerry LeGrandeur. On the same day the Inquiry Committee released their report, the Calgary Sun reported that Mr. Wagar's defence lawyer was advancing the theory that the complainant made a false complaint of rape as she was "suffering from buyers' remorse". (15)

   In January 2017, Mr. Wagar was again acquitted, with Judge LeGrandeur finding that the inconsistencies and contradictions in the complainant's evidence rendered her testimony less reliable than the accused's. Judge LeGrandeur found that her consumption of drugs and alcohol, and her inability to recall details about how much she consumed or the events surrounding the assault, made her evidence unreliable. (16) He also deemed her account of the way her body was positioned during the assault unrealistic, finding that she must have tilted her pelvis and her legs must have been elevated to enable sexual activity to occur. (17) Judge LeGrandeur did not believe the complainant's testimony that she told the accused once that he was hurting her. He reasoned that if there was no evidence Mr. Wagar did something to make the complainant fear him, it would be unlikely that she would tell him only once that he was hurting her while he continued intercourse. (18) He also found that Mr. Wagar remained "true to his word" by not ejaculating in her, and that his willingness to "accommodate" her "concerns" (19) gave his story a "measure of credibility". (20) Judge LeGrandeur found that the evidence provided by other witnesses, including the accused's older brother, created enough reasonable doubt in combination with the inconsistencies in her evidence to acquit the accused. (21)

   Amidst media headlines such as one declaring '"Knees' judge got it right in the end", (22) the CJC was preparing its response to the Inquiry Committee's recommendation. On 9 March 2017 the CJC recommended to the Federal Justice Minister that Justice Camp be removed from the Federal Court. If the Minister accepted the recommendation, it would have required a majority vote in Parliament to remove him. (23) Justice Robin Camp resigned from his position within 24 hours of the CJC's recommendation for his removal, removing any necessity for a parliamentary vote. (24)

2. A HISTORY OF SEXUAL ASSAULT LAW REFORM IN CANADA

   To understand the context for the complaints against Justice Camp, it is helpful to review briefly the history of the criminal law of sexual offences in Canada. The criminal law as it applies to sexual offences has changed considerably from the first Criminal Code of 1892 to the present day, although the great majority of those reforms occurred in the last 30 years. I have divided this larger time period into five phases that each cover significant reforms to one or more provisions. (25)

   PHASE 1 (1892-1967)

   The Criminal Code of 1892 was a codification of English common law and statutory provisions drawn from a number of penal acts. (26) The sexual offences in the first Code remained largely unchanged for the next 70 years. Some sexual acts were criminalized without regard to the consent of the participants because they were seen as immoral or unnatural. (27) Some of these provisions, while gender-neutral on their face, were typically used to criminalize sexual acts between members of the same sex. (28)

   Rape was the most serious sexual offence. (29) Consistent with the common law definition, it required proof of carnal knowledge, defined as the penetration of a vagina by a penis, against the will of the woman. (30) Penetration to any degree was sufficient; proof of ejaculation was not required. (31) Rape was a gendered crime and could only be committed by a man against a woman. A man could not be convicted of the rape of his own wife. (32) Boys under the age of 14 were deemed to be incapable of committing rape. (33) The age of consent to sexual activity for females was 14 years; it was unlawful for a...