With the Judicial Council announcing last week it would be reviewing the comments and conduct of an Alberta judge during a 2014 sexual assault trial, a law professor says the case raises broader concerns about attitudes in the justice system toward the issue.
Although she calls it an “extreme” case of stereotypical thinking, Elaine Craig, an assistant law professor at Dalhousie University’s Schulich School of Law, says Justice Robin Camp’s comments during the trial highlight a significant issue in Canadian courts.
“The kind of statements and questions that this judge asked are far outside the range of what I would typically see in sexual assault cases today,” she says.
“However, having said that, the kinds of stereotypical thinking that underpin and motivate some of his questions and comments are, I think, still very prevalent.”
Craig is one of four law professors who filed a complaint with the judicial council against Camp for his comments during a 2014 Provincial Court of Alberta trial at which a 19-year-old woman accused a Calgary man of sexually assaulting her at a house party. The complaint suggests Camp, who’s now a Federal Court judge, was contemptuous of sexual assault laws and the rules of evidence and went as far as asking the alleged victim, “Why couldn’t you just keep your knees together?” and why she didn’t have a better explanation for “why she allowed the sex to happen if she didn’t want it.”
“Assumptions about the relevance of prior sexual history, assumptions about a failure to run from the room screaming ‘rape’, assumptions about what it means for a woman not to fight back continue to be present in defence counsel strategies and continue to form the outcome of sexual assault cases,” says Craig.
Craig, who has been studying the issue of sexual assault complaints and the justice process in Canada, recently wrote a report called “The inhospitable court” for the University of Toronto Law Journal. She concluded in her study that not only do the judges and lawyers have a responsibility to ensure a proper environment for an alleged victim to state a claim but that it’s time for a review of the process itself.
“The legal profession must confront, in no uncertain terms and with unflinching clarity, the brutality, whether justified or not, of the processes it conducts,” wrote Craig in the study. “More broadly, as a matter of social responsibility, a society that adopts the criminal trial process as a primary response to sexual violence has an obligation to ensure that that process is conducted with compassionate recognition of the violence it effects.”
Camp won’t be hearing cases related to sexual conduct for the time being and has volunteered to undergo sensitivity training, according to a statement released by the Federal Court on Nov. 10. The judge also issued an apology in which he stated: “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.”
Camp acquitted the accused following the 2014 trial, but the Alberta Court of Appeal quickly overturned that result. The appeal court ruled Camp’s comments had given rise to doubts about his understanding of the law governing sexual assault, the meaning of consent, and restrictions on evidence of a 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,” the appeal court stated.
Craig applauds the decision to review the judge’s conduct and is hoping for a look at the broader issues raised.
“I read cases and trial transcripts every day that include judges who don’t understand the rape-shield provisions, how to apply them or apply them erroneously, so there’s a competency that’s lacking with respect to some judges. Undoubtedly, these types of stereotypes continue to influence the way people working in the criminal justice system think,” says Craig.
But Criminal defence lawyer Elham Ellen Jamshidi of Jamshidi & Associates says her experiences in dealing with sexual assault cases have been far more positive.
“I find the courts are very respectful, very empathetic, very conscientious of the fact it’s a very sensitive topic, and from my experience they bend over backwards to ensure the complainant is not intimidated or scared of the process,” says Jamshidi.
Jamshidi doesn’t believe judges tend to lean one way or the other in terms of being more favourable to the complainant or the defendant and says that even when ruling in favour of the accused, the courts “do take the proactive steps to ensure the criminal system is not an intimidating process” for the accuser.
Toronto-based criminal defence lawyer Graham Clark says he, too, believes Camp’s comments during the trial are uncommon. “If anything, there is no other class of civilian complainant that gets such presumptively accommodating treatment from judges,” he says.
“As defence counsel, I am the only supportive link between accused persons and the system.
Complainants get help from the police, then from victim services as well as the Crown who effectively represents them at trial,” he adds.
“It is true that the old hue-and-cry rule is outdated and has no place in the rules of evidence. But that does not mean that the timing and details of the complaint can never be relevant.”
Clark says he sees the pendulum swinging from the “archaic and sexist presumptions” of the past to an approach that raises a concern that “the judge already seems to be on the Crown’s side.”
“Of all the types of cases I handle, there is no other class of civilian complainant that is so likely to engender this concern,” says Clark.