In the midst of a growing moral panic around sexual assault, one of the targets has been sexist “dinosaur” judges who fall prey to “rape myths.” In Canada, former Alberta judge Robin Camp, now referred to as the “knees together judge,” became the scapegoat for forcing judicial reform.
Outrage generated in the media about this case resulted in Camp’s removal from the bench and a re-education bill currently before the Senate.
But what if Camp was actually a really good judge? What if his removal from the bench was not a triumph of right thinking, but rather an act that wrongfully deprived the Canadian people of the services of an excellent judge? What if all of Robin Camp’s comments were, as feminist law professor Brenda Cossman stated, taken out of context?
The case that brought former judge Robin Camp to the public’s attention unfolded in Calgary, Alberta, in June, 2014. A young man was accused of sexually assaulting a young woman. The issue was consent: it was agreed that intercourse had occurred at a house party the two had attended, but the accused insisted that it had been consensual, not an assault. Camp enquired closely into the young woman’s account, and it was his wording of the questions he asked her, to clarify how she had been assaulted in or on a bathroom sink, that later came under fire. Evidence from third parties contradicted the complainant’s version of events, and it was because the evidence overall did not support her account that Judge Camp (as he then was) acquitted the young man.
The Crown appealed the acquittal, and in a decision issued October 27th, 2015, the Alberta Court of Appeal, acknowledging their discomfort that the accused had no legal representation or presence, ordered a retrial in part on the basis that Judge Camp’s “reasons give rise to doubts about the trial judge’s understanding of the law governing sexual assaults” and “that sexual stereotypes and stereotypical myths… may have found their way into the trial judge’s judgment.”
Through a series of events that is not yet entirely clear, the appeal court decision drew the attention of a number of law professors to the case. Two of them, Jennifer Koshan and Alice Woolley, (both law professors at the University of Calgary and also licensed lawyers) wrote posts (dated November 2nd & 3rd, 2015), on a university law blog about it.
Then, Alice Woolley, this time with Elaine Craig (law professor at Dalhousie), submitted an article that was published in The Globe and Mail on November 9th, 2015, under the title “Myths and stereotypes: Some judges still don’t get it.” In their article, the professors quoted several of Camp’s questions and comments during the trial, including the question, “Why couldn’t you just keep your knees together?” The story was promptly picked up by virtually every media outlet in the country, with reports reflecting not the measured tone of the Court of Appeal, but the more sensationalistic approach taken by the professors.
The exposure had immediate effect. Upon reading the Globe article, the intake officer at the Canadian Judicial Council (CJC) launched a review of Camp’s conduct, apparently even before the formal complaint the professors submitted to the CJC the same day was received. After sustained public outrage, the Alberta Solicitor General used her power to escalate the review to a full inquiry, which took place under intense media coverage through 2016.
When the retrial of the case was finally held in late 2016, however, the second judge again acquitted the accused, again on the basis that the evidence did not meet the threshold for guilt. Judge Camp was, therefore, in effect, vindicated by the outcome of the second trial.
Unfortunately for Camp, his reputation was so damaged by the time of the retrial that its outcome was irrelevant to his quest to keep his job. By January of 2017, when the retrial decision was issued, the guilt or innocence of the accused had become a mere footnote to his infamy. Nothing, it seemed, could overcome the effect of the number of times Camp had been referred to in the media as the “knees together judge.” The inquiry panel recommended his removal from the bench, and Robin Camp resigned his position as a judge in March, 2017.
But looking through the media storm, was what Camp did really newsworthy? I would argue that it was not. This is why the ensuing scandal merits careful review.
Judges, whether they are judging a case or judging each other, are not supposed to be vulnerable to public opinion, or to any political forces for that matter. The principle of judicial independence is the most sacred tenet of the legal system, and the whole basis for public confidence in the courts. An independent judiciary is an essential ingredient for a functioning democracy. As the third branch of government, the judiciary’s relative imperviousness balances the vulnerability of the legislative and executive branches to public opinion. A threat to judicial independence is, therefore, a considerable threat to democracy. But a threat to judicial independence for an insignificant transgression is all the more problematic.
Relative to what Camp was criticized for, people experience worse judicial conduct in a dozen other types of cases every day – as any reporter should know, or could verify by spending a few days randomly attending court or calling a local lawyer. But the press corps allowed itself to be glued to the professors’ story about Camp like cats to a laser pointer, ignoring hundreds of other meritorious stories about mistakes and misconduct by judges.
What were deemed to be Camp’s mistakes were, in fact, minor, common, semantic, and sufficiently justified by the complicated procedural framework of the courts and by the gravity of the task before him: determining whether or not to imprison a young man who might be innocent. And even where his comments were truly eyebrow-raising, they did not result in a miscarriage of justice.
The harm done by judicial mistakes can be catastrophic. From custody disasters to unwarranted bankruptcy due to court costs, from the release of dangerous offenders to the subversion of constitutional freedoms, many outcomes are ghastly. Due to the power of precedent in law, these decisions can have extended effects. Great harm can come from even small errors – a slight bias, or a flawed assumption. But, unless an error is critical to the outcome of a trial, even misinterpreting a point of law does not automatically warrant an appeal.
In the case of former Justice Camp, a retrial had already been ordered without the intervention of the law professors. Even if the accused was possibly wrongly acquitted, the appeal courts had addressed the issue. Pending the retrial, there was no danger to the public, and no risk that the public could not continue to have faith in the administration of justice. Even if the case was worthy of news coverage, the situation required no commentary, especially not before the retrial. There was no reason for the professors to write an article, much less a derogatory one, and no reason for an editor to print it. The case merited attention only from the complainant and the accused.
If the case itself was not newsworthy, then something else must have motivated the story’s publication, and a candidate does emerge if one looks more carefully at the case in its legal context. Judge Camp stood accused of insufficiently knowing and not properly applying a specific area of law that is quite controversial – sexual assault law. This is a new and not fully developed area of law that is, to a degree, in conflict with such classic doctrines as the rules of evidence and the presumption of innocence.
The professors who wrote the Globe article and complained about Camp self-identify as feminists and are mostly specialized in sexual assault law. It is apparent, then, that Camp’s actions did pose a threat; not to the parties involved in the case or to the administration of justice, but to what the professors may have considered their intellectual domain; the area known as feminist law.
However, as much as one person or one group may influence or be vested in an area of law by the trajectory of their career, the law is an evolving entity that no one owns. The law changes over time, based in part on what cases come before the courts and how well it serves as a framework for adjudication. In pushing the boundaries of the law, feminist or otherwise, Camp was doing precisely what judges are supposed to do: testing the law as to how well it serves its purpose with a view to keeping the framework of laws robust and relevant. That is the process that led to modern sexual assault law in the first place.
But when the Court of Appeal overturned Camp’s decision, it was shortly after CBC radio host Jian Ghomeshi had been charged with sexual assault, an event that had ramped up tensions around sexual assault law. It may have been this tension that made the professors eager to publicly stake out their intellectual territory, and it may have been why they were prepared to push the boundaries of their academic role (and, since some of them were also licensed lawyers, the ethical limits of lawyer conduct) to make an example of someone in real life.
We thus have a possible motive as to why the professors wanted to leverage public sentiment. It is also not hard to understand why the Globe editor granted them this privilege. It was likely easier for the editor to print the professors’ submission than to take a risk on whatever other submissions from un-credentialed writers were on the editor’s desk that day. I mean, what were the odds that law professors would be wrong?
But even if we understand the factors contributing to the decision to print the professors’ story, what beggars comprehension to this day is the degree to which the mainstream media subsequently spoke with one voice. Reporters sought to outdo each other not with their investigative or critical thinking skills or with their depth of legal knowledge, but only in the speed and frequency with which they could repeat the professors’ allegations. There was no critical evaluation of the professors’ point of view or of the actions they took. Their assertions were not fact-checked. No deeper investigations were done into the world of law to contextualize. No opposing voices were presented.
There were opposing voices available. For example, two independent commentators who specialize in sexual assault law, Clary Jaxon and Diana Davison, each published analysis arguing that Camp had correctly applied the law. Davison outright deemed the case a matter of false allegations. Both commentators received enough traction on social media that the mainstream press could have found them and covered their perspective or interviewed them, but no one in the mainstream press did so.
Instead the media functioned, throughout the course of events, more as the professors’ vanity press than as a marketplace of ideas and information. This was a disastrous failure of journalistic standards, brought about, I would suggest, by excessive trust of law professors as a source. Granting access to the media based on credentials is no better than granting access based on race, sex, or connections. It is a matter of indifference whether the press unjustly suppresses voices that it does not want to hear, or unjustly amplifies voices that it preferentially values – the issue is uniformly promoting one narrative, the pressure this places on public agencies, and the sheep-like behaviour it induces in members of the public.
The whole point of Canadian democracy in the modern age is that there are no upper and lower classes, no in-group points of view that have a divine right to control public discourse while others are filtered out of it. What the media did by enabling two law professors to unleash an unopposed witch-hunt for a judge was to place scholars into a privileged class relative to other people who have no hope of gaining this kind of media access and echo. In doing so it gave scholars the one attribute that no one in democracy is supposed to have: power without accountability.
Robin Camp was not tried in the court of public opinion, which has the capacity to be fair if the media does its job. He was convicted, rather, in the court of professorial opinion, because the media did not do its job. The takedown of Robin Camp was achieved because the media broke its own rules thus establishing and empowering an academic aristocracy.
The destruction of Robin Camp was a far more serious subversion of democracy than has yet been realized.