Friday, 7 October 2016

BAD JUDGES  (part 1)

It seems to me that the conduct of judges both out of their courtrooms and in their courtrooms should be as pristine as possible. And I am sure that the vast majority of them live pristine lives no matter where they are.

Unfortunately, there are some really bad judges whose conduct is anything but pristine. When I was practicing law, I presented court cases before many judges but there were only two who were anything but pristine in their courtrooms. However, this article is not about those bad two judges. This article is about a former provincial judge in the Province of Alberta. His name is Robin Camp.

Every Criminal prosecution in Alberta starts in a Provincial Court. A judge in that court can conduct a preliminary inquiry for serious alleged criminal offences for which the accused has elected have his trial held in the Court of Queen’s Bench which is a higher court. If the accused elects to have his trial dealt with by a judge in the Provincial Court, then the judge in that court will hear the case. Of course, murder and treason are two charges that are automatically held in the higher courts. This article is about a rape case that Justice Camp presided over in his courtroom.

Justice Robin Camp received a Bachelor of Commerce Degree in 1973 and a Bachelor of Laws in 1975, both from the Stellenbosch University, in Cape Province, South Africa where he was appointed head of the Domestic Violence Court. He was admitted to the Bar of Alberta in 1999, and practiced primarily in the area of commercial litigation in Calgary, Alberta. He also taught Civil Procedure at the University of Calgary’s Faculty of Law. Prior to his legal career in Canada, Justice Camp had been an Advocate of the Supreme Court of the Transvaal, practicing at the Johannesburg Bar from 1978 to 1991, and in Gaborone, Botswana from 1992 to 1998. Justice Camp was an Erstwhile Fellow of the Southern African Institute of Arbitrators and founder of the Botswana Chapter of this organization. Justice Camp had been a judge of the Provincial Court of Alberta, Criminal Division since 2012

Unfortunately, his attitude towards women was evidence that he was hiding a character flaw from those who knew him. His character flaw was sexism. It burst open in his courtroom when he was hearing the case of a rape of a 19-year-old woman by Alexander Wager who sexually assaulted his victim over a bathroom sink at a house party.  

In November 2015, the Canadian Judicial Council announced that it was reviewing Camp's conduct in the original trial after a complaint from four law professors at Dalhousie University and the University of Calgary that described Camp as “dismissive, if not contemptuous” toward sexual assault laws and the rules of evidence.

In the 11-page complaint, Elaine Craig, Jocelyn Downie, Jennifer Koshan and Alice Woolley said that in the 2014 trial, Camp asked the complainant, “Why couldn't you just keep your knees together?” and, “Why didn't you just sink your bottom down into the basin so he couldn't penetrate you?”

Those are the type of questions that a disreputable lawyer would ask a rape victim. A decent judge would tell the victim that she doesn’t have to answer those questions. But then, Camp wasn’t a decent judge.

Even if the victim in this case could have taken those steps suggested by Camp,, that cannot be construed as consent to be raped by a rapist.

Court transcripts show that Camp was in effect, questioning the woman's morals, by suggesting that her attempts to fight off the man raping her were feeble and as such, he treated her as if she was the accused throughout the trial.

She later said, "He made me hate myself and he made me feel like I should have done something ... that I was some kind of slut. He made comments asking me why didn't I close my legs or my ankles together. What did he expect me to say to something like that?”

She didn’t have to say anything in response to the judge’s outrageous comments since it wasn’t her who was on trial.

The question that the judge asked of the victim was the kind of question that a defence lawyer would ask a complainant of a rapist while she is testifying in the witness box. If the defence lawyer doesn’t ask the question, it certainly isn’t the judge’s role to ask that question. It is the defence lawyer’s responsibility to diminish the conduct of his client, not the responsibility of the judge.

Justice Camp dismissed the charge against Wagar because the judge felt that Wagar had the young woman’s consent. The Crown (prosecutor) appealed the decision and the Alberta Court of Appeal in 2015, ordered a new trial and warrants for Wagar's arrest were issued. After he was arrested and brought into court, Provincial Court Judge Bob Wilkins refused to release Wagar, who faces a retrial on a charge of sexual assault.

In Canada, rape is now and has been for some time described as sexual assault.

Law students, and their teachers, support, even champion, the principle that the criminal defense lawyer is obligated to challenge the state's case and to demand that every element of every charge be proven beyond a reasonable doubt.

In our adversary system, it is the duty of the defence lawyer to challenge all elements of the prosecution's case. A rape trial presents an opportunity for a variety of defences, including outright denial by the accused, misidentification and consent by the alleged victim. That is the sole responsibility of the defence to prove these kinds of defences. The opportunity of raising those defences are not given to the judge. It is the judge’s role to decide if he or she will accept any of those defences.

Even if Camp felt that the victim in that case may not have taken the steps suggested by Camp from being raped, he could not have raised that question in his decision unless he heard evidence that she didn’t take those specific steps to prevent the rape—which evidence was not presented during the trial he presided over in any case.

The goal of criminal defense is not to seek the truth, but to serve as a screen in a system which ensures that no defendant is criminally punished unless convicted by proof beyond a reasonable doubt. The criminal defence lawyer, together with other protections, helps ensure that the innocent accused is not wrongly convicted and that state intrusion into an individual's life will be limited, thus acting as a check on governmental power.

However, because of the particular vulnerability of rape victims, statues and case law recognize special rules which govern prosecutions for sexual assault. Therefore, the defense lawyer cannot berate a rape victim while she is in the witness box. And in this particular case, the defence lawyer didn’t berate the rape victim.  It was the judge who berated the teenage rape victim. 

In rape cases, it is not morally justified to create doubt about consent when evidence in court establishes that the victim did not consent. To do so, further victimizes women, contributes to damaging stereotypes and myths that perpetuate violence against women, and deters women from reporting rapes.

An acquittal in a rape case results when the prosecution fails to prove absence of consent beyond a reasonable doubt. There was no consent given in the case being heard by Camp so it wasn’t his prerogative to try and prove otherwise.  A judge can only arrive at a verdict  based on what evidence has been given and the arguments of the defence and the prosecution.

There is an exception however. If a judge after hearing the evidence of a witness who has answered the questions of the defense and the prosecution and the judge needs to know a pertinent fact that was omitted during the questioning, then the judge can ask the question that will fill in the missing gap.

However, since the defence didn’t ask if the victim had taken the steps suggested by Cam to fend off the rape, it certainly wasn’t the prerogative of the judge to ask those question . In doing so, he got himself into some very  hot water.

 Under the Judges Act, Parliament granted power to the Canadian Judicial Council to investigate and rule on complaints about the conduct—not the decisions of federally appointed judges. In some cases, the Council will establish an Inquiry Committee to investigate the complaint. The Inquiry Committee prepares a written report of its investigation and those reports are available to the public.

Camp was removed from active service for a year from the Federal Court of Canada, where he was elevated in 2015, while having been “roundly denounced.

By the time the Court of Appeal overturned Camp’s acquittal of Wager, the then-justice minister, Peter MacKay had promoted Camp to the Federal Court. The good news is that the Federal Court announced that Camp was removed from active service from the Federal Court of Canada, and that Camp is not currently hearing any cases. That means he isn’t being paid his salary of a federal judge which is $ $314,000 a year which is $6,o38 a week. 

The committee of the Canadian Judicial Council (CJC) is still probing the conduct of the former Alberta Provincial Court judge, and the Committee can recommend to the members of the CJC that Camp be removed from the bench.

During the hearing, Camp’s lawyers, Frank Addario and his co-counsel, Megan Savard, were making arguments as to why the 64-year-old Camp should be allowed to continue sitting as a judge.

Camp and his two lawyers admitted that he was guilty of judicial misconduct for his reliance on discredited ‘rape myths’ and his grotesque comments to the complainant, but as Addario put it in his written arguments, that his client “had an education problem, not a character problem” and that he’s fixed it now through intensive counselling and mentoring with three experts on sexual abuse.  

Come on. Give me a break, An education problem?  Are we to understand that he learned during his life, that if women doesn’t fight their attackers, they are effect consenting to being raped?  Did the judges hearing that drivel spewing out of the lawyer’s mouth really accept that inane premise?

His lawyers said that their client was tutored and counselled by a senior judge, a feminist law professor and a psychologist with expertise in trauma and the effects of sexual violence and he sought their help on his own volition.

That is praiseworthy but that is no guarantee that he won’t screw up again in an outrageous manner with some other victim of another crime.  Bringing Camp back into the court as a judge is akin to letting the rapist he set free, work in a girl’s camp even if he was given treatment for his sexual crime.  It doesn’t come down to education. it comes down to character.

Marjorie Hickey, the ‘presenting counsel’ for the inquiry and the de facto prosecutor, said in effect that there’s a third Camp, too—the judge who has repeatedly apologized for his conduct and has been an eager and willing student in his own rehabilitation and may even be, as his character letters suggest, a kind, bright and empathetic man.

Empathy is something that is ingrained in a person’s psyche. It is not something that is afar that one has to reach for it. In any case, Camp not only didn’t have empathy for the victim, he didn’t even try and reach for it.

Did Camp apologize to the women before he was suspended from the federal court? Did he make the effort to rehabilitate himself before he was suspended from the federal court?  Where the letters saying that he was a kind, bright and empathetic man written by his friends who would like to see him back in the federal court?  More importantly, was he kind, bright and empathetic before he was suspended from the federal court?

Was his treatment of the young woman in his courtroom kind? Did he possess empathy for the young woman knowing what she had gone through while she was being raped by the man Camp had set free?  Was he also bright when he wrongfully ignored the tenets of how rape victims are to be treated in a trial? 

Savard while making arguments for Camp tried to explain why the 64-year-old Camp should be allowed to continue sitting as a judge said, Camp is “unique” in that “no other subject of a CJC inquiry has acknowledged responsibility so quickly or gone to the lengths he has to educate himself.”

Come on. Many criminals who are charged with a crime will go out of their way to take steps to see show that they have reformed. If Camp was really sincere about his role in the courtroom, he would have taken those steps long before he put that unfortunate woman through Hell.

As far as I am concerned, it was a ploy on Camp’s part to convince the judges at the Canadian Judicial Council that he has reformed.

Let me ask you this rhetorical question. If the teenage victim of Wager who raped her, seeks psychological help and receives it before he goes to trial again, should he be put on probation instead of being sent to prison? If that was the sentence, would that be justice for the victim? I will ask you another question. If the CJC puts Camp on probation instead of terminating his role in any court, would that be justice for his victim? 

As I said earlier in this piece, these wrongful acts on his part were character flaws and such flaws don’t simply disappear because a person has talks with those who recognize his character flaws.

A judge must possess intelligence and decency all the time when serving on the bench and in my opinion, this judge seriously lacked those two attributes when he denounced the victim of that rape case he was dealing with and subsequently set the rapist free.   

Camp failed to grasp the laws in the Criminal Code, chiefly the rape shield laws designed to protect complainants in sex assault cases. These are hardly ‘obscure sections’ of the Code.

A judge in Ontario has used his verdict in a sexual assault trial to deliver a scathing critique of rape myths, the treatment of sexual assault complainants in Canada’s legal system and expectations on how survivors should act after an assault.

Justice Marvin Zuker said, “The myths of rape should be dispelled once and for all,” He wrote in his 179-page decision. “It doesn’t matter if the victim was drinking, out at night alone, sexually exploited, on a date with the perpetrator, or how the victim was dressed. No one asks to be raped.”

It didn’t matter if the teenage victim of her rapist, didn’t cross her legs or place her buttocks in the sink to thwart the efforts of the rapist, she like all other women didn’t ask to be raped.

The most common reasons for rape victims not reporting the crime are shame and embarrassment, fear of the offender and lack of confidence in the justice system. While 53 per cent of participants in a study stated that they were not confident in the police, two-thirds stated that they were not confident in the court process and in the criminal justice system in general.

Considering Camp’s conduct it is more evidence as to why many women don’t want to experience what Camp put that unfortunate woman through. She was rhetorically speaking, raped by the judge in his courtroom.

Survivors of sexual violence nowadays are becoming more informed about the criminal justice system, and know that help is available for victims and that legal proceedings can take a long time. What they are not prepared for is being rhetorically raped by the presiding judge while testifying in court.

The prosecutor in the case I am writing about should have redirected the cross examination by asking the victim as to why she didn’t take the measures the judge suggested to avoid being raped.   

It seems to me that rape victims should have counsel in court protecting them from that kind of judicial abuse. I know that the prosecutor is representing the victim but in reality, the prosecutor is primarily prosecuting the victim’s rapist. If the prosecutor in that case said nothing, then I have made my point.  

One of the lawyers on the inquiry, Cynthia Petersen, was uncomfortable with the unspoken suggestion that Justice Camp should be made an example of to address the sins of others in the justice system. She said, “That doesn’t seem right to me.”

Judge George Jeffreys who served as a judge in the Seventeenth Century in England was referred to as the hanging judge as he had no qualms about hanging criminals no matter how minor the crimes. One day, a man who stole a sheep was sentenced to be hanged by Jefferies. The man cried out, “My Lord. It was only a sheep. Must I be hanged for that? Jeffreys replied, “I didn’t sentence you to death for stealing a sheep. I sentenced you to death as a deterrent so others of your ilk will not steal a sheep.”

In my opinion, Camp should be permanently removed from the judiciary as a deterrent to other judges who are prone to acting like Camp did.

Hickey (the prosecutor at the inquiry said, “The real issue for the panel is all about confidence in the judiciary, and it can’t be divorced from the “social context of the moment.” She said that that in her view, “Justice Camp’s own words here at the inquiry were the best evidence that he shouldn’t be allowed to remain on the bench.”

I concur. 

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