CALGARY — Legal experts are urging greater diversity on the bench as three Alberta judges face scrutiny for remarks they made during sexual assault trials.
The most high-profile case centres on Judge Robin Camp, who asked a complainant why she didn't keep her knees together and referred her as "the accused" during the 2014 trial, a mistake he repeated at a Canadian Judicial Council hearing last week before quickly correcting himself.
University of British Columbia law professor Emma Cunliffe said the woman in the Camp case — like many who come into contact with the justice system — suffered "compound vulnerabilities" that the judge should have understood.
For instance, the 19-year-old woman whom Camp chided is indigenous and was homeless at the time of her alleged rape.
Judiciary 'not very diverse'
"The judiciary is not very diverse and unfortunately it became less diverse in the last 10 to 15 years," said Cunliffe.
Alison Gray, a Bennett Jones lawyer who was co-counsel on the Women's Legal Education and Action Fund intervention in the Camp inquiry, said it's important that marginalized groups are represented in the legal profession.
But she said judges should also be educating themselves on issues outside their own life experience.
"I don't think that we have a bunch of judges that don't have empathy or don't have compassion. I just think that they're coming from a position where they don't understand necessarily the experience of a sexual assault complainant or they don't understand the experience of a homeless person," said Gray, who called Camp's comments "out of the norm."
Compulsory education might be a solution
Kathleen Mahoney, a University of Calgary law professor, has long pressed for compulsory education on gender, race and other sensitive topics judges are likely encounter in their courtrooms.
"You can't take for granted that judges are going to be sensitive to context as much as they should be," she said. "So often you rely on myths and stereotypes to help you understand what another person's shoes feel like when you put them on."
Camp has apologized for remarks and his legal team argued that he had an "education problem, not a character problem" and that he has since endeavoured to learn about the issue. His lawyers also argued that outdated attitudes in the judiciary won't be eliminated by firing Camp to make an example of him.
Though Camp was a provincial judge when he acquitted the man, he has since been appointed to the federal bench, which means he is subject to a Canadian Judicial Council disciplinary inquiry.
Justice Robin Camp arrives at a Canadian Judicial Council Inquiry in Calgary. (Photo: Todd Korol/CP)
Public hearings wrapped up earlier this week. The five-member panel is to report to the council, which will then make a recommendation to the federal justice minister as to whether Camp is fit to keep his job.
Meanwhile, reviews are happening behind closed doors into how two other Alberta provincial judges handled recent sexual assault cases.
Ron Hewitt, executive director of the Provincial Court of Alberta, declined to elaborate on the reviews being done by provincial Chief Judge Terrence Matchett.
One case centres on Justice Pat McIlhargey's June 2015 acquittal of a 16-year-old boy accused of raping a 13-year-old girl in a park.
Last month, in ordering a new trial, a Court of Queen's Bench judge said McIlhargey allowed "unexplained myths and stereotypes to enter his assessment of the complainant's credibility."
Judge criticized alleged victim's behaviour
McIlhargey wrote in his decision that on the day of the incident "she did not scream, she did not run for help. She ran to the Co-op and called her friend and told her she could not meet her friend. At no point did she ever mention this to a friend, no complaint to a friend."
The trial judge also noted that the aunt with whom the girl was living "did not notice any change in her demeanour."
In the other case, Judge Michael Savaryn acquitted a 15-year-old boy who grabbed the breasts and buttocks of a girl, also 15, in a high school hallway and tried to kiss her.
"In fairness to the accused, the complainant tried so hard to laugh it all off that I do not believe she was successful in communicating her discomfort," Savaryn wrote in his decision.
In July, the acquittal was overturned by a higher court judge. The boy was convicted and awaits sentencing.
In her decision overturning the acquittal, Justice J.E. Topolniski wrote: "Consent means 'Yes.' The word 'No' does not mean 'Yes." The word 'No' coupled with fending off an attacker with a water bottle does not mean 'Yes.' There is nothing ambiguous about it.'"