Judges: a danger to Canadian women 1:15 Min by 22 Minutes, March 22, 2017, CBC Comedy
The neighbourhood takes a terrifying turn when a judge moves to your street.
‘This Hour Has 22 Minutes’ Sketch Goes After Canadian Judges by Emma Paling, March 21, 2017, The Huffington Post Canada
“I’m sick of reading about them in the news and I’m sick of them making us unsafe.”
The latest “This Hour Has 22 Minutes” sketch shows women’s worst nightmare come true: a Canadian judge moves into the neighbourhood.
“They don’t treat women the way other Canadians do,” comedian Cathy Jones says.
Actor Shaun Majumder tells his neighbour not to drink too many beers because, “Remember, a drunk can consent” — ridiculing Nova Scotia judge Gregory Lenehan.
Lenehan’s acquittal of a Halifax cab driver — accused of sexually assaulting a young woman passed out in his car — sparked debate across the country.
The sketch also makes a reference to the infamous question that led to an Alberta judge’s resignation: “Why couldn’t you keep your knees together?”
It wraps with a kicker that would be hilarious if it wasn’t so true.
“Judges: a danger to Canadian women. If you’re alone with one, get out and call a cab. Wait no, call the RCMP. No, not that either. Call a senator. No, wait.”
Complaint filed after judge reportedly leaves trial citing want to ‘sleep in his own bed’ by Camille Bains, The Canadian Press, March 24, 2017, Calgary Herald
VANCOUVER — Comments attributed to a British Columbia judge about the number of days that should be allotted to hear a sexual assault case have led to a complaint to the Canadian Judicial Council, the province’s attorney general said Thursday.
Charges in the case were stayed by the Crown on Tuesday in B.C. Supreme Court in Kamloops.
Attorney General Suzanne Anton did not say who filed the complaint against Justice Peter Leask.
“I understand that the comments, ill-considered as they appear to be, did not impact on the outcome of this case,” Anton said in a statement to The Canadian Press.
A transcript of the court proceedings was not publicly available Thursday because of a publication ban in the case.
But Kamloops This Week quotes Leask as saying he needed to return to work in Vancouver.
“Full disclosure: I live in Vancouver,” the newspaper quoted Leask as telling the court on Monday. “Kamloops is a wonderful place, but I like sleeping in my own bed.”
Benjamin Perrin, an associate law professor at the University of British Columbia, said he filed a complaint with the judicial council, saying Leask’s alleged conduct undermines public confidence in the administration of justice over behaviour that amounts to systemic bias.
“The statement attributed to Justice Leask is at best a bad joke and at worst an indication that he was not taking his job as a judge seriously,” he said in a 14-page document filed with the judicial council on Thursday.
“I was shocked and felt an obligation to file this complaint,” Perrin said in an interview.
“These comments simply cannot be allowed to stand,” he said, noting there’s is a large problem with unreported sexual assaults in Canada.
Perrin cited other examples of “insensitivity” toward sexual assault victims by police and former Federal Court judge Robin Camp, who asked a sexual assault complainant in 2014 when he was an Alberta provincial court judge why the woman couldn’t keep her knees together.
Camp resigned from his Federal Court position earlier this month after a removal hearing by the Canadian Judicial Council.
The Canadian Judicial Council is a federal body that reviews complaints or allegations against superior court judges. It is chaired by the chief justice of the Supreme Court of Canada and consists of 38 other council members who are chief justices and associate chief justices of the country’s superior courts.
Anton said the complaint launched against Leask meets the criteria for the council to review the matter. [How will that compare to the complaint filed about Justice Abella?]
“I am not going to put myself ahead of any review,” she said in the statement. “As a process has been initiated, I will leave it to the council to review the complaint and have no further comment.”
The complainant, who alleged her stepfather sexually assaulted her for six years in the mid-1970s, told Kamloops This Week she was “disgusted” to learn Leask asked the Crown and defence lawyers to shorten the scheduled two-week trial to one week because of a shortage of judges.
Crown attorney Katie Bouchard was not available Thursday, but a spokesman for the B.C. Criminal Justice Branch said the Crown’s decision was not influenced by any comments made by the court in the course scheduling discussions by the judge.
“The decision to stay the charges in this case was made after a full and careful review of the evidence,” Dan McLaughlin said in a statement. “After reviewing this information the prosecutor concluded the charge assessment standard was no longer met. In these circumstances a stay of proceedings is the appropriate course of action.”
McLaughlin said he did not know in which context Leask made the comments.
“But I think it’s important to understand the comments, to put them in the proper context.”
Bruce Cohen, a former judge who serves as spokesman for the B.C. Supreme Court, said he did not have a response to an inquiry for comment.
Charlene Eden, a spokeswoman for the Kamloops Sexual Assault Counselling Centre, said the agency was also considering filing a complaint against Leask.
“As an agency we don’t make decisions lightly on anything we do so we’re going to take the time to look at all the facts and all the pieces and then we’ll make a decision.”
Eden said she was not in the courtroom when Leask made the comments but heard about them from various sources.
She said Leask’s request to cut the scheduled trial time in half suggests due process could not be possible, adding all cases require adequate time for the Crown to present evidence and testimony from all of its witnesses.
“In cases involving sexual assault, when the conviction rate is as low as it is, that’s a concern for me,” she said. “The reality is that it is difficult to make the case, especially with historic sexual abuse.” [Emphasis added]
2017 03 22: once-imprisoned lawyer could practise law in Ontario, LSUC rules registered sex offender is of ‘good character’ by Alex Robinson, Canadian Lawyer Magazine
[CANADIAN CHILDREN ENDANGERED TOO?]
A former lawyer from Florida, who spent two years in prison for a child pornography charge, is one step closer to acquiring a licence to practise law in Ontario.
The Law Society of Upper Canada’s hearing tribunal has determined that Ronald Davidovic, who was born in Montreal but moved to the United States as a child, has proven he took the necessary steps to rehabilitate himself and that he is of good character, a requirement in the licensing process.
Davidovic was imprisoned in a federal penitentiary and registered as a sex offender after he pleaded guilty to a count of “receiving material containing the visual depiction of minors engaging in sexually explicit conduct,” according to the decision.
In 2004, police executed a search warrant at Davidovic’s home and seized his computers. He subsequently admitted to police and to his wife at the time that he had viewed child pornography since 1998. He was originally sentenced to five years in prison, but his sentence was later reduced.
He was also originally charged with a count of possessing child porn, but that was dropped when he pleaded guilty to the other charge.
Benchers Raj Anand and Jan Richardson, who served on the panel, decided to grant Davidovic’s application.
“The applicant’s conduct in the years preceding 2004 was reprehensible, but it is not an automatic or permanent bar to his admission, given the evidence and positions of the parties, and in light of the applicant’s determination to be an ethical and productive lawyer,” said Anand and Richardson. Bencher Paul Cooper held the lone dissenting opinion on the split three-member panel.
The tribunal used what is called the five “Armstrong factors” in determining whether Davidovic was in present good character. These factors include the nature and duration of the misconduct, whether the applicant is remorseful, the rehabilitative efforts that have been taken and their success, as well as the applicant’s conduct since the misconduct and the amount of time that has passed since.
Anand and Richardson determined that Davidovic had made repeated statements of remorse and that the risk he would reoffend was very low.
They also noted that there is no evidence of recurrence or subsequent bad behaviour on Davidovic’s part in the 13 years since he was charged.
“The applicant’s attempts to rehabilitate himself have gone beyond steps that might be regarded as inward-looking: treatment, counselling and self-assessment,” Anand and Richardson said.
Davidovic says he was very excited and pleased with the decision.
“I’m very fortunate to have an opportunity to be able to practise my chosen profession again,” he said in a phone interview from Florida.
“I’m pleased that the country of Canada, or at least the law society, recognizes that an individual can rehabilitate themselves and I hope that this decision gives hopes to others that there is a light at the end of the tunnel, and if they do what they’re supposed to do, there is a possibility to return to a meaningful life after having been convicted of an offence.”
Davidovic provided the tribunal with a number of reports to support his application, which were written by a reverend who served as his therapist, a social worker who conducted a court-ordered treatment program and a doctor who conducted a psychological evaluation and risk assessment of Davidovic in 2013. The tribunal also received transcripts of recent interviews an LSUC investigator conducted with those who wrote the reports.
The law society’s counsel in the matter, Amanda Worley, did not oppose Davidovic’s application after he provided testimony.
In his dissenting opinion, Cooper found that Davidovic had failed to prove he was rehabilitated.
He found the reports from the social worker and the reverend were dated, anecdotal and not scientific and that testimony given by Davidovic lacked reliability.
“The lack of proper diagnosis together with the risk of re-offending in this case illustrates the applicants’ failure to satisfy his burden,” Cooper said in his dissent.
“He chose to provide dated reports, none of which addressed the simple and present context needed to explain whether paraphilia remains a concern.”
Cooper said he also remained unconvinced that Davidovic “fully comprehends victim empathy or remorse.”
“The seriousness of Mr. Davidovic’s misconduct cannot be bootstrapped by conditions when residual concerns linger about his present good character,” Cooper said.
“The Law Society, as the regulator, has an obligation to maintain high ethical standards in the public interest and to maintain the public’s confidence in the legal profession and its ability to self-govern and regulate. The practice of Law in Ontario is a privilege, not a right.”
Davidovic says Cooper’s opinion reflects the bencher’s own personal bias toward the offence.
“I think it’s inconsistent with the empirical evidence that’s out there on these types of offences,” he says.
Toronto lawyer Lee Akazaki, who was not involved in the proceedings, says the decision was born out of the ambiguity the bar has in its definition of good character. He says the standard for lawyers is much higher than that applied to a non-lawyer who has come out of incarceration rehabilitated.
“Character is something that is intrinsic within us. It’s not like a psychological condition and it’s not like a management of impulses such as anger. Character very much has to do with one’s ethical centre in the deliberation in one’s thinking,” he says.
Akazaki adds that it is difficult to come to the conclusion that Davidovic has sufficiently met the good character requirement, given the facts of the case and the nature of the crime committed.
“Just on the basis of the facts, he established on the evidence that he’s probably a reformed citizen, a rehabilitated citizen, but whether he has the good character requirement to be a member of the bar altogether, I don’t think the facts show he has the good character requirement,” he says.
“It’s difficult in this type of case to see how somebody with this particular background and the type of crime he committed can ever satisfy that requirement.”
In 2004, Davidovic petitioned the Florida Supreme Court for a disciplinary resignation and was granted permission to resign from the Florida bar with leave to appeal in five years. He did not reapply in Florida, but in 2015, he applied to the LSUC for a licence to practise in Ontario, as he plans to move to Toronto where he has family.
Davidovic says he chose to apply in Ontario because there are all sorts of impediments in Florida that make it difficult to live day to day for someone convicted of such an offence.
Before his conviction, Davidovic had practised in estate and financial planning in his early career before going on to act as general counsel for a large telecommunications company.
He says he plans to pursue criminal law in Ontario, as he has a unique perspective that will give him more empathy for those who have made mistakes in their lives.
Davidovic is still an applicant in the licensing process.
A spokeswoman for the law society said it is policy not to interpret or comment on decisions made by the tribunal hearing panel.
Updated March 24, 2017: A previous version of this story stated that the Law Society of Upper Canada’s hearing tribunal granted a licence to Ronald Davidovic. The tribunal decided that Davidovic was of good character, a requirement of the licensing process. He is still an applicant in the licensing process and has not yet been granted a licence to practise law in Ontario. Legal Feeds regrets any confusion caused. [Emphasis added]
Justice Robin Camp ‘very sorry’ for ‘knees together’ comment at sex assault trial
Federal Court Justice Robin Camp, dubbed the “knees together judge” for his comments in a sex assault case, has submitted his resignation following a recommendation from Canada’s judicial watchdog that he be removed from the bench.
In a ruling announced Thursday afternoon, the Canadian Judicial Council (CJC) said that at a 2014 sexual assault trial he was presiding over, Camp “showed obvious disdain for some of the characteristics of the regime enacted by Parliament in respect of sexual assault issues.”
“We find that the judge’s conduct, viewed in its totality and in light of all of its consequences, was so manifestly and profoundly destructive of the concept of impartiality, integrity and independence of the judicial role that public confidence is sufficiently undermined to render the judge incapable of executing the judicial office,” the council’s ruling reads.
In a statement from his lawyer, Camp announced his intention to resign and apologized.
“I have advised Chief Justice Crampton that effective March 10, 2017, I will resign as a member of the Federal Court of Canada,” the statement read.
“I would like to express my sincere apology to everyone who was hurt by my comments during the [sex assault] trial. I thank everyone who was generous and kind to me and my family in the last 15 months, particularly my legal team.”
Before Camp’s statement was issued, Justice Minister and Attorney General Jody Wilson-Raybould rose in the House of Commons seeking unanimous consent for a motion to remove Camp from the bench, but that consent was denied.
Conservative Saskatchewan MP Tom Lukiwksi then rose on a point of order and complained the minister had not ensured she had the unanimous consent of all parties before moving her motion.
Votes in both the House of Commons and the Senate are required to remove a federal judge, a move presumably no longer required with Camp’s resignation.
Wilson-Raybould told reporters on Parliament Hill she learned of Camp’s decision after she sought support for her motion.
Court transcripts from the 2014 sexual assault trial show Camp, who was then a provincial court judge, called the complainant, who was homeless and 19 years old at the time of the alleged assault, “the accused” numerous times — a mistake he repeated at the judicial council hearing before correcting himself.
Camp also told the young woman “pain and sex sometimes go together” and asked why she didn’t just keep her “knees together.”
‘Antithetical’ to contemporary values
The judge apologized several times for those comments, underwent counselling and took additional training on Canada’s sexual assault laws.
But that wasn’t enough for the CJC.
“The statements made by Justice Camp during the trial and in his decision, the values implicit in those statements and the way in which he conducted himself are so antithetical to the contemporary values of our judicial system with respect to the manner in which complainants in sexual assault cases should be treated that, in our view, confidence in the system cannot be maintained unless the system disassociates itself from the image which the judge, by his statements and approach, represents in the mind of a reasonable member of the public,” wrote the majority.
Parliament considers training for judges
NDP MP Murray Rankin said that by resigning, Camp took the only course of action available in light of the conclusions of the judicial council.
Rankin added that Camp’s case bolsters a private member’s bill by interim Conservative leader Rona Ambrose to ensure judges know Canada’s sexual assault laws. Parliament voted unanimously this week to send that bill to committee for further study.
Ambrose, in a statement welcoming the council’s ruling, said her bill was designed to hold the judiciary responsible for the ongoing training of its judges.
“Unfortunately, there is not enough accountability on the part of the judiciary in ensuring that judges have the updated training Canadians expect them to have. This needs to change,” Ambrose said in the statement.
Until Thursday, Camp had fought hard to keep his job.
He asked to speak directly to the 23 chief and associate chief justices who make up the CJC. But the majority said Camp had already “been fully and fairly heard,” and declined saying nothing had changed since his public hearing last fall.
Camp then asked the Federal Court to stop the judicial council from deliberating his fate and to review an earlier decision he be dismissed. His lawyer Frank Addario argued the judicial council should consider the fact that Alexander Scott Wager, the man who was accused of sexual assault in the original trial, had once again been acquitted. The judge refused to stall the CJC.
Since the council’s creation in 1971, no judge has gone to such lengths to keep his job. There have only been two other cases where the council recommended Parliament remove a judge from the bench and in both cases the men resigned almost immediately.
Just like any other judge facing discipline, Camp’s legal battle has been paid for by taxpayers through the Commission for Federal Judicial Affairs, which has refused to say how much it has cost so far.
Four judges dissented from the majority [all men] and said Camp should not lose his job because he has rehabilitated himself through counselling and further education. [Emphasis added]
2017 02 24: Justice Robin Camp loses bid to suspend watchdog’s deliberations on his fate, Federal Court denies motion to stop Canadian Judicial Council from considering recommendation to remove judge
The Federal Court has ruled the Canadian Judicial Council can continue to deliberate whether Justice Robin Camp can remain on the bench.
Deputy Judge Joseph Robertson handed down his decision hours after hearing arguments Thursday.
The judicial council is considering what to do in light of a decision by its inquiry committee to recommend Parliament vote to remove the Federal Court judge from the bench.
- Camp tries to suspend judicial watchdog’s deliberations
- Camp to make final plea to judicial watchdog
- Report on Camp sends message to all judges
In November, the panel of senior judges and lawyers considered Camp’s behaviour at a 2014 sexual assault trial, when he was an Alberta provincial court judge. It concluded Camp blamed the 19-year-old complainant for the alleged rape, displayed ignorance and antipathy for sexual assault legislation and was disrespectful to the Crown prosecutor.
At one point during the trial, Camp asked the woman, who testified she’d been raped at a party, “Why couldn’t you just keep your knees together?”
All 23 members of the Canadian Judicial Council, made up of chief and associate chief justices from across the country, must now make a formal recommendation to the minister of justice.
Camp has asked to speak directly to the council on several occasions and has been turned down. The council encouraged the judge to submit his arguments in writing.
Wanted to appear in person
Last week, Camp asked the Federal Court to review the decision to deny him that opportunity and this week he asked the same court to force the judicial council to suspend its deliberations until after a decision is made on his first application.
Camp’s lawyer, Frank Addario, argued Thursday that written submissions aren’t sufficient to ensure the council is fully brought up to speed on the fact that the man who had been accused of rape in the case Camp presided over in 2014 was recently retried and acquitted.
Addario added that if the Federal Court were to order the judicial council to hear Camp’s oral arguments after it makes its final decision, the result would be procedural chaos.
Robertson though, appears to have sided with arguments made by Falguni Debnath, a lawyer for the federal attorney general, who said it was premature to ask the Federal Court for judicial review, seeing as the council had not yet made a final decision. She also argued the public does not want any further delays on the decision of whether Camp is fit to remain a judge. [Emphasis added]
Justice Robin Camp in ‘knees together’ case seeks review of judicial council decision
Canadian Judicial Council disciplinary panel recommended Camp lose his job after controversial comments by The Canadian Press, Feb 15, 2017, CBC News
Uncharted territory if judge in ‘knees together’ case continues fight for job
‘Knees together’ judge asks to plead case directly to judicial council that could fire him
Judge facing removal over sex assault trial conduct to make final plea to judicial watchdog
A Calgary judge who could lose his job after asking a sexual assault complainant why she couldn’t keep her knees together is asking for a judicial review in his case.
Justice Robin Camp wants to address the Canadian Judicial Council after the accused in the original trial was acquitted again in a retrial.
In court documents filed this week, Camp says the council refused his request to speak to the council, so he is asking the Federal Court to intervene.
A disciplinary panel of the council has recommended Camp lose his job after his controversial comments to the female complainant in the original sexual assault trial of Alexander Wagar.
Camp found Wagar not guilty, but the Appeal Court ordered a new trial and last month Wagar was acquitted again.
Camp is currently waiting to see if the council will agree with the disciplinary panel’s decision and recommend that he be removed from the bench. [Emphasis added]
What happens if Robin Camp, the ‘knees together’ judge, keeps fighting for his job? by Bill Graveland, Postmedia News, January 14, 2017, National Post
A judge who asked a sex assault complainant why she couldn’t keep her “knees together” could be headed into uncharted territory if he continues to fight for his job.
A Canadian Judicial Council committee, which held a public hearing in Calgary in September, found Robin Camp’s apology for his comments during a 2014 trial wasn’t enough and urged he be removed from the bench.
The council as a whole will mull over the panel’s recommendation — and Camp’s rebuttal — when it meets in Ottawa at the end of the month.
Regardless of what the council recommends, Camp’s fate will end up in the hands of federal Justice Minister Jody Wilson-Raybould and then Parliament.
“How these things get debated in Parliament is a little bit of an unknown, because there has never been a joint address or joint declaration in Parliament regarding a judge’s removal. Judges have resigned or retired when it has gotten to that point,” said Johanna Laporte, the council’s director of communications.
“We don’t quite know how that would work. Presumably the House of Commons would debate and then the Senate would debate and then they would have a vote. It remains to be seen.”
Laporte said several years ago an MP said he wanted a judge, whose future was set to be debated, to appear before Parliament.
“That might be something they would want. That might be something the judge would request. We don’t know.”
Court transcripts from a 2014 sexual assault trial show Camp, who was a provincial court judge at the time, called the complainant, who was homeless and 19 years old at the time of the alleged assault, “the accused” numerous times — a mistake he repeated at the judicial council hearing before correcting himself.
During the trial, he also told the young woman “pain and sex sometimes go together” and asked why she didn’t just keep her “knees together.”
Camp acquitted Alexander Wagar, but the verdict was overturned on appeal and a new trial was ordered. A verdict in the retrial is expected this month.
Camp’s lawyer, Frank Addario, has argued his client should be allowed to keep his current job as a federal court judge.
“Removal is not necessary to preserve public confidence in this case. Justice Camp’s misconduct was the product of ignorance, not animus. He has worked hard to correct his knowledge deficit,” Addario wrote in a rebuttal submission to the judicial council.
A request on behalf of Camp to appear in person before the judicial council was initially rejected, but is to be discussed at the end of the month.
“Justice Camp is the first judge to fight for his office and his reputation since the council amended its bylaws in 2010 to remove the express right to oral submissions,” Addario wrote.
When contacted, Addario said he had nothing to add beyond his submission.
Laporte said that if Camp’s request to address the council in person is granted, another public hearing would have to be scheduled for February.
“The council has set aside some time at the end of this month to deliberate and they’re going to be considering the inquiry committee report as well as Justice Camp’s submission,” she said.
“He asked to be heard and they’re going to think about that and deliberate.” [Emphasis added]
An internal review of two Alberta judges who used myths and stereotypes about sexual-assault victims in their acquittals is complete, but the public is not being told whether the judges have been reprimanded, given extra judicial education or left alone.
Alberta judges have been in a national spotlight over their handling of sex-assault trials.
Last fall, a public hearing was held on the conduct of Federal Court Justice Robin Camp, who as a Provincial Court judge in Alberta in 2014 asked a sex-assault complainant why she didn’t keep her knees together, and acquitted the accused of rape. A disciplinary body has recommended his removal from the bench.
No such public hearings were held into the conduct of Provincial Court Justice Michael Savaryn of Edmonton and Provincial Court Justice Pat McIlhargey of Calgary during sex-assault trials. But after higher courts said the two judges had used myths and stereotypes and failed to understand the law of consent, Provincial Court Chief Judge Terrence Matchett said in September that he would conduct a review of the two judges.
Under the Alberta Judicature Act, the Chief Judge may review any conduct that comes to his attention, whether or not a complaint has been made, and may reprimand the judge, take corrective measures, refer the matter to the province’s judicial council or decide that no further action need be taken. But the same act says that “the proceedings under this section are not public.” [How typical of secretive, corrupt, oil spoiled Alberta!]
Ron Hewitt, the court’s executive director, said the Chief Judge has done the reviews but cannot talk about them.
“Yes, the reviews in the JR and CMG cases have been completed,” he said in an e-mail to The Globe and Mail. “The Chief Judge is of the view that all appropriate measures have been taken as a result of the cases and that no further action need be taken.”
He said there were no public complaints made against either judge, and in any event, under the Judicature Act, “proceedings of this sort are not public. Therefore, no further statement can or will be made on them.”
Justice Savaryn acquitted a teenage boy who grabbed a 15-year-old girl by the buttocks and breasts in a high-school hallway, though a video camera recorded her saying no. The judge said she did not call for help to a nearby janitor. In July, a higher court took the unusual step of replacing the acquittal with a conviction and directing that a judge other than Justice Savaryn handle the sentencing.
Justice McIlhargey acquitted a 16-year-old boy accused of raping a 13-year-old girl in a park, saying the girl had not screamed or run for help or confided what had happened to an aunt with whom she had been staying. A higher-court judge threw out the acquittal and ordered a new trial.
Jan Reimer, a former Edmonton mayor who is executive director of the Alberta Council of Women’s Shelters, supports changes to provincial law that would let people know the results of such reviews.
“I think, first and foremost, we need some changes in the legislation which err on the side of transparency. People in public positions have to undergo more public scrutiny.”
That would help boost public confidence in the judiciary, she said. “It may be that good things are being done.”
Lise Gotell, a law professor at the University of Alberta and chair of the Women’s Legal Education and Action Fund, said that, unlike Justice Camp, these two judges did not show antipathy or contempt for sexual-assault law.
But their decisions “clearly show how rape myths continue to reflect judicial decision-making in sexual assault.”
She said she believes Chief Judge Matchett is trying to combat the problem by focusing on judicial education – including a six-hour program on sexual-assault law at the court’s spring conference – and that a reprimand would show that rape myths have no place in the courtroom.
The province’s NDP government is not planning any changes to the Judicature Act’s protection of judges’ privacy, a spokesman for Alberta Justice Minister Kathleen Ganley said. [AB NDP = Cowards!]
But where a member of the public complains to the judicial council, and the council considers the matter serious enough to justify an inquiry, the inquiry’s report and any sanctions must be made public, he said.
Alberta is not an outlier. In Ontario, after several public complaints against a Provincial Court judge who wore a Trump campaign hat into his courtroom, the judge abruptly stopped being assigned cases on Dec. 21, and Chief Justice Lise Maisonneuve declined to say why.
Adam Dodek, a University of Ottawa law professor and co-editor of Regulating Judges: Beyond Independence and Accountability, said the complaints and discipline process for judges across Canada lags behind what the public expects in transparency and responsiveness. “It is now a basic requirement of the justice system in Canada that reasons be given for decisions. The same rule that the judges apply in their decisions should also apply to decisions about judges.” [Emphasis added]
Alberta judge Kirk Sisson criticized in sexual assault case takes early retirement, In 2013, Justice Kirk Sisson ruled rape complainant consented after tiring from fighting off her attacker by Bill Graveland, The Canadian Press , December 20, 2016, CBC News
A judge who came under fire from Alberta’s appeal court for ruling a rape complainant in a sexual assault case consented after tiring from fighting off her attacker has decided to take early retirement.
In 2014, the Alberta Court of Appeal criticized Justice Kirk Sisson, of the Court of Queen’s Bench in Red Deer, for acquitting a suspect in a 2013 sexual assault case.
Court heard the woman told the suspect on numerous occasions that she did not want to engage in any sexual activity.
He persisted despite her protests. After struggling and resisting his advances for 20 minutes, she realized he was not going to take no for an answer.
“She testified that she gave in because of his persistence, and to get it over with. In other words, she finally decided that she had enough and gave into him,” wrote Sisson in his ruling.
“Consequently, the Crown has failed to prove an essential element of the offence beyond a reasonable doubt, that’s lack of consent.”
Appeal court convicted
But the appeal court set aside Sisson’s ruling and substituted the acquittal with a conviction saying he “erred in his narrow definition of the charge of sexual assault” and by “inferring consent from submission.”
“The trial judge considered only the sexual intercourse that took place after these protests. This is an error. Sexual assault is not confined to intercourse,” wrote the three-judge panel.
“The Criminal Code makes clear that acquiescence or submission is not consent. Moreover, the law requires that reasonable steps be taken to ensure consent after the rejection of sexual advances.”
Sisson, 65, was appointed to the bench in 2006 and will take early retirement beginning Jan. 3. He could have remained on the job for another 10 years.
He will receive an annual pension payout of $142,000.
Judge bias a problem
Danielle Aubry, executive director of Calgary Communities Against Sexual Abuse, said she doesn’t think the age of a judge is the issue.
She said the problem is with judges who have biases that reflect rape culture myths.
“They’re the ones who should be retiring,” she said.
“Let’s just make sure anyone who is sitting on the bench is doing it responsibly and with good information and good education.”
One of many high-profile cases
The Sisson case is just one of a number of high-profile cases that has put the Alberta judiciary in the spotlight.
A Canadian Judicial Council panel recommended last month that Justice Robin Camp should lose his job for his handling of a 2014 sexual assault trial.
Camp called the complainant, an indigenous woman who was 19 years old and homeless at the time of the alleged assault, “the accused” throughout the trial — a phrase he repeated during a judicial council disciplinary hearing before quickly correcting himself.
He also told the young woman “pain and sex sometimes go together” and asked why she couldn’t just “keep her knees together.”
Camp acquitted Alexander Wagar, but the verdict was overturned on appeal and a new trial was ordered. Testimony in the retrial wrapped up in November.
Provincial Chief Judge Terrence Matchett is also reviewing how two other Alberta provincial judges handled recent sexual assault cases.
In June 2015, Judge Pat McIlhargey acquitted a 16-year-old boy accused of raping a 13-year-old girl in a park because the girl “did not scream, she did not run for help.”
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.
Savaryn wrote the complainant “tried so hard to laugh it all off that I do not believe she was successful in communicating her discomfort.”
The acquittal was overturned by a higher court judge and the boy was convicted.
The public is more aware now about problems in the justice system thanks to cases like Camp’s, Aubry said.
“The fact it was a sexual assault case did bring a lot of attention to it and I think it is just the beginning,” she said. “Daily in court we are experiencing judges who have lots of biases and lots of myths that they still hold.” [Emphasis added]
Most complaints about Canadian judges dealt with behind closed doors, Justice Robin Camp leaves a Canadian Judicial Council hearing in Calgary last fall by Steve Lambert, The Canadian Press, September 12, 2016, Calgary Herald
Public hearings that consider whether a judge should be removed from the bench, such as the current one involving Federal Court Justice Robin Camp, are rare.
The Canadian Judicial Council receives more than 150 complaints each year and the vast majority are either dismissed or dealt with behind closed doors.
The question of how to hold judges accountable and maintain faith in the justice system, while also respecting judicial independence, is an ongoing quandary. The process is still evolving 45 years after the council was established.
“We have to really balance a complex set of interests,” says Karen Busby, a law professor at the University of Manitoba.
“Right now, we know little about what happens with the cases where … it’s not in the public interest to have a full public inquiry, but there needs to be some kind of accountability.”
The inquiry into Camp, who asked a sexual assault complainant why she couldn’t keep her knees together, is one of only 11 full-blown hearings by the council since its formation in 1971.
When the council receives a complaint, it decides whether it has jurisdiction to delve into the matter.
Complaints have to be about a judge’s conduct — not a ruling. They can be dismissed if they are deemed trivial, vexatious or not in the public interest.
If the complaint is deemed worthy, it is reviewed by a member of the council’s conduct committee, who may dismiss it refer it higher up to a review panel. Remedial measures can also be sought, such as requiring a judge to apologize or take sensitivity training.
The 2011 case of Manitoba Court of Queen’s Bench Justice Robert Dewar was settled at the early stage. Dewar called a convicted rapist a clumsy Don Juan and made remarks about the victim’s clothing. The council said it was an isolated incident and Dewar apologized.
A complaint that makes it to a review panel faces further evaluation: Is the complaint serious enough that it might warrant removing a judge from the bench? If so, an inquiry is called that is open to the media and the public.
Federal and provincial justice ministers can also ask the council for an inquiry. That happened in 1990 with three Nova Scotia judges over the wrongful murder conviction of Donald Marshall Jr.
Full inquiries are rare for good reason, the council says.
“Judges have to be able to deliver sometimes unpopular decisions without fear of reprisals,” says Johanna Laporte, the council’s communications director.
“The notion of security of tenure and the judge being able to remain on the bench — they can’t be removed easily — is an important one.”
In the vast majority of cases that are either dismissed or settled, little is known. In the council’s annual reports, some examples of decisions are discussed, but names are not included.
The public inquiry stage has not always been smooth.
A 2012 inquiry into Manitoba Court of Queen’s Bench Justice Lori Douglas ran into several roadblocks before grinding to a halt.
Douglas, head of Manitoba’s family court division at the time, was under scrutiny after sexually explicit pictures of her taken by her lawyer-husband were posted on the Internet. She was also accused of sexually harassing one of her husband’s former clients.
The independent counsel leading the inquiry, Guy Pratte, resigned after being instructed by the inquiry panel to pursue the harassment charge that he wanted to drop. He also felt undermined when the panel had its own lawyer aggressively question a witness after Pratte had finished.
Douglas’s lawyer accused the panel of bias and that prompted separate court hearings.
Two years later, Douglas announced she was resigning and the inquiry was cancelled.
Since then, changes have been made.
There is no longer an independent counsel leading inquiries and the council has one layperson on the panel that decides whether an inquiry is warranted.
The federal government is looking at further changes, including the possibility of releasing more information about complaints. But the government points to pitfalls.
“It is important to remember that where a complaint does not lead to a judge’s removal from office, the judge must be able to return to his or her duties,” reads a discussion paper released by the Justice Department in June.
“The extent to which judges can publicly defend themselves against allegations of misconduct is limited. As a result, disclosure of such allegations before any investigation has taken place to ascertain key facts may serve to unjustifiably undermine public confidence in the judge.” [Emphasis added]
4 Alberta judges under scrutiny for sex assault rulings, Male judges relied on ‘myths and stereotypes’ about female victims’ behaviour, law professor says by CBC News with files from Dan McGarvey, Natasha Frakes and The Canadian Press, September 16, 2016
A fourth Alberta judge has been rebuked following his ruling in a sexual assault trial, prompting calls from legal experts for greater diversity on the bench and better education for judges.
An Appeal Court ruled that Justice K. Yamauchi relied on “discredited myths and stereotypes” about the disclosure of sexual abuse in a 2013 case.
- Justice Robin Camp should be removed for sex assault trial mistakes, inquiry hears
- Chief judge launches review of Edmonton judge in sex-assault case
In his decision, Yamauchi questioned why two young girls didn’t tell anyone earlier about abuse at the hands of their stepfather, a farmer in southern Alberta. The man, whom Yamauchi acquitted, was also accused of sexually abusing his own daughter.
Yamauchi also questioned why the children couldn’t remember “innocuous things,” such as when they lived at certain places, or where they were going to school at the time of the abuse.
In May, the Alberta Court of Appeal ordered a new trial, saying the judge “erred in law” and “misapplied” two key legal principles.
The so-called doctrine of “recent complaint” has long been struck from Canadian law, the Appeal Court noted when it overturned Yamauchi’s ruling.
It also noted that the Supreme Court has recognized that there may often be “understandable inaccuracies” in evidence given by children, especially with the passage of time.
The case follows the high-profile inquiry into Justice Robin Camp’s mistreatment of a complainant in a sexual assault trial, where he asked why she didn’t just keep her knees together.
There was also a third case involving a judge in Edmonton, whose acquittal of a teenager in a sexual assault case was recently overturned by a higher court.
And in August, the Court of Queen’s Bench overturned an acquittal made by Justice Pat McIlhargey, in a case involving a 16-year-old boy accused of raping a 13-year-old girl in 2015.
In that decision, McIlhargey remarked that the complainant didn’t scream, run for help or confide in a friend.
Steven Penney, a law professor at the University of Alberta, said he’s not sure how representative these cases are of the overall justice system, but there is still a concern.
“The first issue is the use of discredited sexist myths and stereotypes in evaluating the credibility of a sexual assault complainant,” Penney told CBC News.
“And the second issue is the judges’ blatant misunderstanding of the law.”
Penney said he doesn’t believe these issues are “pervasive or rampant within the judiciary, but at the same time, it’s clear that they exist to some extent.”
The most high-profile case centres on Justice Robin Camp, who asked a sexual assault complainant why she didn’t keep her knees together.
Camp also accidentally referred to her as “the accused” during the 2014 trial, a mistake he repeated at a Canadian Judicial Council inquiry 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.
“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 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.”
Camp has apologized for the remarks and his legal team argued that he had an “education problem, not a character problem.” His lawyers also argued that outdated attitudes in the judiciary won’t be eliminated by firing Camp to make an example of him.
The Canadian Judicial Council is to make a recommendation as to whether Camp is fit to keep his job.
‘She did not scream’
Meanwhile, reviews are happening behind closed doors into how two other Alberta provincial judges handled recent sexual assault cases.
One case centres on 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.”
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.
Justice Juliana Topolniski has overturned a ruling in a sexual-assault case made earlier this year by provincial court Judge Michael Savaryn.
“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 Juliana Topolniski wrote:
“The word ‘no’ coupled with fending off an attacker with a water bottle does not mean ‘yes.’ There is nothing ambiguous about it.'” [Emphasis added]
2014 01: Court Politics How justices’ upbringing, education and proclivities shape their rulings Book Review by Bob Tarantino, Literary Review of Canada
Book Reviewed: Governing from the Bench: The Supreme Court of Canada and the Judicial Role by Emmett Macfarlane, UBC Press, ISBN 9780774823517
“…there can be little doubt that a justice’s background, ideology, persona values, or life and educational experiences influence her decision making…
“Even judges themselves occasionally acknowledge this truth: Justice Rosalie Abella is quoted as saying that each judge ‘is armed not only with relevant legal texts, but with a set of values, experiences and assumptions that are thoroughly embedded.’
As long ago as 1988, former justice Estey was noting that, as Macfarlane describes it, ‘it worried him that Canadians still did not realize that the Court’s decisions are dependent on the personality of each judge.’” [Emphasis added]
1999 03 01: Alberta judge to face formal complaint, Rare exchange between judges leaves legal community ‘shocked, appalled’ by Jill Mahoney, The Globe and Mail
Edmonton — Fallout from last week’s Supreme Court ruling on sexual assault has sparked a formal complaint against a senior Alberta judge and a call for a new trial for the man convicted in the case.
The National Council of Women of Canada will launch a complaint with the Canadian Judicial Council today expressing “extreme concern” about Mr. Justice John McClung of the Alberta Court of Appeal.
Judge McClung wrote a public letter late last week responding to the Supreme Court decision, which struck down one of his rulings.
In the letter, he characterized Madam Justice Claire L’Heureux-Dubé’s reasons as “personal invective” and said her convictions could account for the growing number of male suicides in Quebec.
“We feel that his behaviour has been quite inappropriate,” said Elizabeth Hutchinson, president of the National Council of Women of Canada, an umbrella organization that represents about 50 women’s groups across the country.
When reached at his Edmonton office yesterday morning, Judge McClung said it was not “appropriate” for him to comment and hung up on a reporter.
But his close friend of 40 years, lawyer Ammon Ackroyd, said Judge McClung was very “upset” by Judge L’Heureux-Dubé, who made strong comments about his ruling, calling some of his reasons “inappropriate” and rooted in stereotypes.
However, experts say Judge McClung should not have viewed Judge L’Heureux-Dubé’s remarks as a personal attack, since it has become common for Supreme Court judges to use powerful language when speaking of judgments, even those of their colleagues.
In published comments this weekend, Judge McClung insisted he did not realize Judge L’Heureux-Dubé’s husband committed suicide in 1978.
But, enraging women’s groups further, he said the 17-year-old victim “was not lost on her way home from the nunnery.” He also said his original comment in the 1998 Court of Appeal ruling that the woman wasn’t wearing a “bonnet and crinolines” was a reference to her “sexual maturity” because she had a child and was living with her boyfriend.
“To make comments about her clothing, that she wasn’t wearing a bonnet and crinolines, and then furthermore . . . that he said that she wasn’t on her way home from the nunnery is quite offensive,” Ms. Hutchinson said, adding that her organization will also object to these remarks in its complaint.
Given that judges rarely make critical public comments about each other, Judge McClung’s letter and remarks have created a stir among the country’s legal community.
“Everyone seems very surprised and taken aback, as I am myself. It’s not something that any of us recall ever seeing before,” said Paul Moreau, who has argued cases in front of Judge McClung both as a Crown prosecutor and defence lawyer.
“They’re stunned; they’re shocked; they’re appalled. People seem to have that universal response because it is so unusual and it seems to be so personal and hurtful,” said Kathleen Mahoney, a law professor at the University of Calgary and a friend of Judge L’Heureux-Dubé.
Many observers find Judge McClung’s remarks all the more unbelievable because he is the grandson of Nellie McClung, an early feminist who fought to get women the vote. “She must be rotating in her grave,” Ms. Hutchinson said.
Meanwhile, the man at the centre of the controversial case, Steve Ewanchuk, has hired a new lawyer who is considering asking the Supreme Court to grant a new trial.
In Thursday’s ruling, the Supreme Court unanimously agreed that the notion of implied consent does not exist in law and convicted Mr. Ewanchuk of sexual assault. He will be sentenced by an Alberta judge.
“The law is clarified, so give him a new trial,” said criminal lawyer Brian Beresh. “All people in the future have that benefit. If tomorrow there’s a trial in Edmonton, that accused has the benefit of the wisdom of the Supreme Court. Why shouldn’t this accused?”
But an application for a new trial would be highly unusual and unlikely to succeed, Prof. Mahoney said.
“Once the Supreme Court has spoken on a case, it’s over,” she said.
A place which feels compelled to legislate justice and liberty is an unlikely place in which to find justice and liberty.