On February 23, 2017, Conservative MP Rona Ambrose introduced Private Member’s Bill C-337, the Judicial Accountability Through Sexual Assault Law Training Act, to ensure all prospective judges would receive proper training about sexual assault law prior to being appointed to the Bench.
Her proposed legislation was a direct response to Justice Robin Camp’s conduct in R. v. Wagar, where he asked the complainant “why couldn’t you just keep your knees together?”
Ambrose swore no sexual assault victim would ever again be subjected to such ignorant and disgraceful conduct from a judge.
Ambrose’s Bill C-337 easily passed 3rd Reading in the House of Commons on May 15, 2017. The bill moved on to the Senate where it languished for two years, despite committee amendments to the proposed legislation.
Bill C-337 died when Justin Trudeau dissolved Parliament ahead of the 2019 federal election.
The following excerpt is from the redacted transcript of R. v. Wagar. Alberta Provincial Court Judge Robin Camp (appointed to the Federal court a year later) questioned the witness after the cross-examination by defence counsel concluded.
Complainant: “My — my vagina was not in the bowl of the basin when he was having intercourse with me.”
Judge Robin Camp: “All right. Which then leads me to the question: Why not — why didn’t you just sink your bottom down into the basin so he couldn’t penetrate you?”
Complainant: “I was drunk.”
Judge Robin Camp: “And when your ankles were held together by your jeans, your skinny jeans, why couldn’t you just keep your knees together?”
Complainant: “I don’t know.”
This exchange, combined with Judge Camp’s decision to acquit the defendant, sparked outrage across the judicial and political spectrum.
It also sparked an appeal of Wagar’s acquittal.
The Appeals court ordered a new trial which took place in November 2016 and, on January 31, 2017, the defendant was acquitted for the second time.
This second acquittal did not remove the stink from Judge Robin Camp’s questions, nor did it absolve Camp of his stunning lack of knowledge of criminal law in general, and sexual assault law in particular.
The National Post’s Christie Blatchford explains.
Camp, according to an agreed statement of facts now in evidence at the Canadian Judicial Council hearing, received no training “on the law of sexual assault or how to conduct sexual assault trials,” which are particularly tricky because of prohibitions on a complainant’s previous sexual experience and on how what’s called post-incident conduct may or may not be used.
As the transcripts of the 2014 trial show, Camp was practically begging the prosecutor, Hyatt Mograbee, for guidance on how he could or should use the testimony he’d heard, and for specific case law.
“And the fact that she’s affectionate afterwards,” Camp asked Mograbee, “does that undermine her credibility?”
“Not in the Crown’s respectful submission,” Mograbee said. “You’re now getting into thinking about ways that you would expect a person to act after they’ve been sexually assaulted. And that can be a dangerous … Because there isn’t a (single) way that people are expected to act …”
“Geez,” Camp replied, “well, that’s what probabilities are. Probabilities very often don’t absolutely align with facts because human nature is infinite. But you have to deal with probabilities all the time.”
On February 5, 2020, Justice Minister David Lametti introduced Bill C-5 – An Act to amend the Judges Act and the Criminal Code – which resurrected Rona Ambrose’s legislation on this issue, while making specific changes to address concerns from the Senate.
The purpose of Bill C-5, like Ambrose’s bill before it, is “to restrict eligibility for judicial appointment to individuals who have completed comprehensive education in respect of matters related to sexual assault law and social context.”
Bill C-5, like Ambrose’s Bill C-337 before it, also requires “that judges provide reasons for decisions in sexual assault proceedings.”
In plain English, Bill C-5, will ensure judges receive training in the effects of sexual assault so they do not repeat the mistakes of Judge Camp and others like him.
Bill C-5 will easily pass in the House of Commons with the support of all political parties. That much is practically guaranteed. What remains to be seen is whether the Senate agrees that Lametti’s changes adequately deal with all of their prior objections.
The Paul Batchelor case I wrote about last week highlights why we need Bill C-5 to pass.
In that case, Ontario Superior Court Justice Robert Beaudoin acquitted accused serial rapist Paul Batchelor in two separate sexual assault cases. Batchelor currently faces nine additional sexual assault charges for allegedly raping women while he was on bail for his first two charges.
Batchelor’s acquittal is only part of the issue. The larger and more pressing concern is Justice Beaudoin’s thinking in these cases, and why he chose to ignore witness testimony and side with the defendant.
Speaking to the testimony of one victim who said she screamed while Paul Batchelor anally raped her, Justice Beaudoin said:
“Curiously, no one seems to have heard her cries. It is difficult to accept that he would have continued assaulting [the woman] with his knowledge that her very loud screams could be heard.”
As repulsive as such comments are, Justice Robert Beaudoin’s statements aren’t the worst I’ve ever seen. That prize goes to B.C. Judge Peter van der Hoop’s 1989 decision to acquit a drunken 34-year-old man of raping a 3-year-old girl because “the man was drunk” and “because the child was sexually aggressive.”
Given recent court decisions, it’s obvious our provincial court judges haven’t learned anything since Judge Peter van der Hoop’s gross statements about “sexually aggressive” 3-year-old kids over 30 years ago.