By Melissa Smith (2L)
In his nineteenth-century novel, Tess of the d’Urbervilles, Thomas Hardy scandalized British aristocrats by suggesting that a woman who has sex before marriage might not be an amoral abomination. More specifically, he describes Tess, a teenage girl who is raped by her cousin, as a victim of her circumstances rather than as depravity incarnate. Nevertheless, society rejects Tess and her true love leaves her in disgust. “But,” Tess pleads, “suppose your sin was not of your own seeking?” To which Victorian England replies: “We don’t care.”
Today, the law seeks to vindicate victims of sexual assault and refrain from gendered reasoning rooted in the logic of the Victorian era. Accordingly, the Canadian Judicial Council (CJC) launched an inquiry into the conduct of Federal Court Justice Robin Camp for comments he made during R v Wagar, a 2014 sexual assault trial. It is alleged that he demonstrated antipathy towards the “rape shield” law (s. 276 of the Criminal Code), belittled women, trivialized the crime of sexual assault, and relied on rape myths and stereotypes in his reasoning. The inquiry committee concluded its hearings earlier this month and will make a recommendation as to whether public confidence in Camp is sufficiently undermined to render him incapable of continuing in judicial office.
While there is a surplus of offensive quotes in the trial transcript, some particular gems include Camp asking the complainant, “Why didn’t you just sink your bottom down into the basin so he couldn’t penetrate you?” and “Why couldn’t you just keep your knees together?” After all, once a woman learns that she can avoid penetration by simply “skew[ing] her pelvis slightly,” she is fully equipped to foil her sexual assailant.
Prior to the inquiry, Camp posted a formal apology on the Federal Court’s website, received training on trauma and the law of sexual assault, and underwent psychotherapy in order to interrogate his beliefs and root out unconscious biases. Brenda Cossman (a University of Toronto law professor and Director of the Bonham Centre for Sexual Diversity Studies) spent five private sessions educating Camp and described him as “open,” “sincere,” and “remorseful.” At his hearing, Camp reflected: “At some level that I wasn’t aware of, I was subject to prejudice… the prejudice that all women behave the same way and they should resist.”
Condemnation of Camp’s comments by the media and the CJC is heartening. While Camp claims his education on the law of sexual assault has realigned his perspective with Canadian values, intervenors suggest that he has irreparably damaged the reputation of the justice system, and should be removed from the bench regardless. Though the Committee has yet to release its conclusion, the inquiry process has fostered confidence in our justice system by forcing Camp to publicly account for his sexism.
Unfortunately, no such confidence was fostered by the 2011 public inquiry into Associate Chief Justice Lori Douglas of the Court of Queen’s Bench of Manitoba. It began after Jack King—her now-deceased husband, who had been a lawyer himself—released nude photos of her to his client—Alex Chapman—and the Internet. Originally, the inquiry committee was to investigate Chapman’s sexual harassment claim against Douglas, her failure to disclose the photos in her application for judicial appointment, and her potential incapacity to continue in judicial office as a result of their public availability. The committee eventually dismissed Chapman’s complaint, finding that it lacked any “evidentiary foundation.”
Despite that finding, Douglas faced a new set of allegations in 2014. This time, the inquiry committee would focus on the nature of the photos and the consequences of their public release. The CJC believed the photos could potentially undermine the public’s confidence in the justice system.
To investigate, the Committee decided they needed to view the photos directly rather than rely on detailed descriptions of their content. In a remarkable feat of legal doublespeak, the Committee specified that their decision was not about policing permissible forms of sexual expression, but rather was about, “whether once disclosed publicly, such expression may or may not have an impact on the disclosure obligations of a candidate for judicial appointment or on a judge’s ability to sit as a judge.” Of course, this amounts to the exact same thing. The Committee was either going to look at the photos and gasp in horror or else flashback to their drunken college days.
Following a five-year review process and the Committee’s decision to admit the photos, Douglas agreed to retire in 2015 with a diminished pension in lieu of further humiliation. With a staggering disregard for irony, the CJC shamed Douglas for posing in consensual, private photos, in part because “some of [them] could be seen as demeaning to women.”
Unlike the Camp inquiry, the Douglas inquiry shatters confidence in the justice system by demonstrating that the professional success of a woman in law might depend on the whims of a vengeful ex-partner. Whether or not the inquiry would have resulted in Douglas’s removal from the bench, the process was so oppressive that she resigned anyways. Keep in mind: Camp actually exhibited a lack of judgment, while Douglas never erred in her judicial duties.
The CJC should be lauded for its efforts to condemn judicial sexism. However, it still has a ways to go. Perhaps its next step should be confronting its own perspectives and prejudices, ones which led it to condemn a woman for her sexuality.
“But,” Douglas pleaded in her original response to the allegations, “right thinking people do not conclude that a woman who has been victimized by her husband is to blame for her husband’s conduct.” To which the CJC replied: “We don’t care.”
- R v Wagar was overturned on appeal, and will be retried in November.
- In addition to the other allegations, Lori Douglas was accused of modifying a personal diary entry that was relevant to the Chapman investigation.