Law Times

Law Times • November 16, 2015 Page 3 www.lawtimesnews.com Camp complaint raises broader concern about judges' attitudes: prof BY NEIL ETIENNE Law Times ith the Canadian Judicial Council announcing last week it would be reviewing the comments and conduct of an Alberta judge during a 2014 sexual assault tri- al, a law professor says the case raises broader concerns about attitudes in the justice system toward the issue. Although she calls it an "ex- treme" case of stereotypical thinking, Elaine Craig, an assis- tant law professor at Dalhousie University's Schulich School of Law, says Justice Robin Camp's comments during the trial high- light a significant issue in Cana- dian 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 think- ing that underpin and motivate some of his questions and com- ments are, I think, still very prevalent." Craig is one of four law pro- fessors who filed a complaint with the judicial council against Camp for his comments during a 2014 Provincial Court of Al- berta trial at which a 19-year-old woman accused a Calgary man of sexually assaulting her at a house party. The complaint sug- gests 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 explana- tion for "why she allowed the sex to happen if she didn't want it." "Assumptions about the rel- evance 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 com- plaints 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 responsibil- ity to ensure a proper environ- ment 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 unf linching clarity, the brutality, whether justified or not, of the processes it con- ducts," 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 obliga- tion to ensure that that process is conducted with compassion- ate 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 re- leased 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 deci- sion, caused deep and signifi- cant 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 quick- ly overturned that result. The appeal court ruled Camp's com- ments had given rise to doubts about his understanding of the law governing sexual assault, the meaning of consent, and restric- tions on evidence of a complain- ant's sexual activity. "We are also persuaded that sexual stereotypes and stereo- typical 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 tran- scripts 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 com- petency that's lacking with re- spect to some judges. Undoubt- edly, these types of stereotypes continue to inf luence the way people working in the criminal justice system think," says Craig. But Criminal defence lawyer Elham Ellen Jamshidi of Jam- shidi & Associates says her ex- periences in dealing with sexual assault cases have been far more positive. "I find the courts are very re- spectful, very empathetic, very conscientious of the fact it's a very sensitive topic, and from my experience they bend over backwards to ensure the com- plainant is not intimidated or scared of the process," says Jam- shidi. 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 intim- idating process" for the accuser. Toronto-based criminal de- fence lawyer Graham Clark says he, too, believes Camp's comments during the trial are uncommon. "If anything, there is no other class of civil- ian 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 ser- vices 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 com- plaint can never be relevant." Clark says he sees the pendu- lum 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. LT NEWS January 2016 Langlois Kronström Desjardins LLP Untitled-1 1 2015-11-12 9:17 AM W

• Cover