On November 9, 2015, it was widely reported by the media that the Canadian Judicial Council (CJC) had decided to review the conduct of Justice Robin Camp in acquitting a defendant of sexual assault on September 9, 2014, when he was a judge of the Provincial Court of Alberta. Justice Camp has since been appointed to the Federal Court. The decision of the CJC was made in response to a complaint filed by four law professors that criticized Justice Camp’s distain for the rape shield provisions of the Criminal Code and his conclusions about the complainant’s credibility based upon stereotypical assumptions that perpetuate discriminatory rape myths. I will not repeat his sexist comments here as they have been well rebuked in the complaint and the print media. (See: Sean Fine. Federal court judge barred from hearing cases related to sexual conduct. The Globe and Mail. November 9, 2015; and, Daryl Slade. Judge reviewed after asking sex assault complainant, ‘Why couldn’t you just keep your knees together?’ National Post. November 10, 2015)

In the Alberta Court of Appeal ruling reported as R v Wagar, 2015 ABCA 327 Justice Brian K. O’Ferrall, speaking for a unanimous court, made short shrift of Justice Camp’s judgment, at p. 1: “…[W]e are satisfied that the trial judge’s comments throughout the proceedings and in his reasons gave rise to doubts about the trial judge’s understanding of the law governing sexual assaults and in particular, the meaning of consent and restrictions on evidence of the complainant’s sexual activity…We are also persuaded that sexual stereotypes and stereotypical myths, which have long since been discredited, may have found their way into the trial judge’s judgment.”

Then, as a firestorm was slowly emerging on social media, the Federal Court released a Statement in Response to the Canadian Judicial Council’s Decision to Review the Conduct of Justice Robin Camp dated November 10, 2015. It is this statement, containing Justice Camp’s apology, that will be the focus of my comments:

“The Federal Court welcomes the CJC’s review and is pleased that Justice Camp is fully cooperating with that review.

In the meantime, 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.

Furthermore, Justice Camp has volunteered to undertake a program of gender sensitivity counseling at his own expense and on his own time in order to understand more fully the implications and significance of his comments before the Provincial Court of Alberta, and he will ensure that he does not make similar comments in the future.

Justice Robin Camp has provided the following personal statement: ‘I have come to recognize that things that I said and attitudes I displayed during the trial of this matter, and in my decision, caused deep and significant pain to many people. 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. I am deeply troubled that things that I said would hurt the innocent. In this regard, I am speaking particularly to those who hesitate to come forward to report abuse of any kind and who are reluctant to give evidence about abuse, sexual or otherwise. To the extent that what I have said discourages any person from reporting abuse, or from testifying about it, I am truly sorry. I will do all in my power to learn from this and to never repeat these mistakes.”

The statement by the Federal Court, and the apology made by Justice Camp, both miss the point at the core of the complaint. The authors of the complaint said this, at p. 10: “That any modern judge could ask a complainant if she kept her knees together, couple that with numerous other sexist and degrading comments, and then go on to ignore much of the law incumbent upon him to apply, eliminates confidence in that judge’s commitment to independence, integrity, impartiality, and commitment to equality, brings the administration of justice into disrepute, and undermines the rule of law.”

These are high stakes – the integrity of the justice system and the rule of law; both of which are equally important to men and women. Professor Alice Woolley, Associate Dean at the University of Calgary, Faculty of Law, and one of the authors of the complaint, was quoted as saying: “I don’t know why his apology is directed to women. Men are also affected by things that bring the administration of justice into disrepute.” (See: Kathleen Harris and Alison Crawford. Federal Court judge under review for berating sex assault complainant. CBC News. November 10, 2015)

The bizarre nature of the statement of the Federal Court was emphasized in a blog post titled Why did the Federal Court issue a media statement regarding Justice Robin Camp? where Ontario lawyer Lee Akazaki wrote:

“…[T]he Federal Court’s issuance of this media release…goes against the basic concept of the court as institution without collective legal personality. The court is only a conduit of powers granted by the Constitution. In this case, the Federal Court is a statutory s. 101 court lacking inherent jurisdiction. This court axiomatically can have no self-interest of a body corporate and can neither ‘welcome’ the CJC’s investigation any more than it can state that such an investigation is spurious. The transparency and integrity of the administration of justice does not belong to the court but to the public.

The power to assign judges to cases does not rest with the court but with the Chief Justice or the Chief Justice’s delegates. The court is not a democracy and has no collective voice. The Federal Court has no ability to speak on substantive issues except through the judgments of its individual puisne judges. Media statements by the court’s administration are, for this reason, generally limited to announcements related to the administrative support of the judges, such as appointments, practice advisories and rule changes. This point is vital because judges are free to disagree with their colleagues in the same court without fear of sanction, and the appropriate recourse in case of error is its appellate division. Even there, judges are free to dissent from the majority view. By issuing a press release welcoming an investigation of one of its complement by an outside agency of the state, the court gives the illusion of a collective voice outside the scope of its decision-making power as an impartial forum.

One of the burdens of the office of judge is having to live with what others may think or say publicly about you after rendering judgment, without being able to respond. A judge’s acts, once reduced to a formal judgment of the court, are not his or hers to take back. This is part of the legal doctrine of functus officio…In enabling Justice Camp to break this fundamental rule, the Federal Court’s statement has compounded the offences to the rule of law and to the independence of Canada’s judiciary from politics.” (See: Blog. An Open Mind: About Canadian Law & Ethics. November 10, 2015)

Yet, there is a fourth offence here. The first, of course, is Justice Camp’s biased and sexist conduct during the Wagar trial. The second is the apology that compounded his violation of the rule of law and the integrity of the justice system. The third is the Federal Court’s statement, a court of which Justice Camp is now a member, that has given the illusion of a collective voice welcoming an agent of the state that will put everything right. It should be said again – the integrity of the justice system does not belong to the court. It belongs to all Canadians. And then, there is this: as of October 27, 2015, the date the Alberta Court of Appeal rendered its ruling, the defendant Alexander Scott Wagar, is facing a trial for the second time. How will he get a fair trial?

What, then, constitutes a fair trial in Canadian law? The legal construct is easy to state. Achieving one is the hard part. In R v Lyons, [1987] 2 SCR 309 Justice Gerald La Forest stated the general rule, at para. 88, that s. 7 of the Charter of Rights entitles a defendant to a fair trial. It does not entitle him or her to the most favourable procedures that could possibly be imagined. And in R v Rose, [1998] 3 SCR 262 Justice Peter Cory was more specific, at para. 98: “The right to make full answer and defence is protected under s. 7 of the Charter. It is one of the principles of fundamental justice. In R v Stinchcombe, [1991] 3 SCR 326, at p. 336, Sopinka J., writing for the Court, described this right as ‘one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.’…The right is integrally linked to other principles of fundamental justice, such as the presumption of innocence, the right to a fair trial, and the principle against self-incrimination.”

Do you know how Alexander Scott Wagar can get a fair trial here? Yes. The stakes are high indeed. It’s a roll of the dice!