Judge was wildly unfamiliar not just with sexual assault law, but with criminal law …

CALGARY — The sexual assault case that saw then-Alberta Provincial Court Judge Robin Camp land in the soup was one hot mess — a classic of the he-said-she-said variety, with the additional complication of a witness who said the alleged victim told her she was going to have sex with the alleged attacker moments before the alleged assault.

And 474 pages of transcripts of the entire trial, released Wednesday by the Canadian Judicial Council panel now reviewing Camp’s conduct, as well as testimony from the “mentor” who has since helped the judge in his purported re-education, show that Camp was wildly unfamiliar not just with the law on sexual assault, but with the criminal law itself.

The 64-year-old Camp, who was appointed to the provincial bench in 2012 and then elevated to the Federal Court of Canada in June of last year, had only ever practised criminal law for a short time after he opened his practice in his native South Africa.

Thereafter, and certainly after he immigrated to Canada in 1998, he was a civil litigator, with a specialty in contractual, trust, oil and gas law.

Yet when he was named to the bench, it was as a judge in the criminal division.

The criminal courts are the rough-and-tumble sector of the law, very different from the rather more genteel corporate and commercial sides. But litigators from both big corporate and small boutique law firms are routinely appointed to the bench across the country. Camp is hardly alone, either in having little criminal law experience or in being expected to quickly master the nuances of a criminal trial.

In fact, his hired mentor, Manitoba Court of Queen’s Bench Judge Deborah McCawley, testified Wednesday that she “had no criminal law experience” when she was named to the Queen’s Bench, where about 75 per cent of her work until recently “was criminal law.”

Unlike Camp, however, McCawley was a federally appointed judge, which meant she could, and did, avail herself of “top-notch education programs” run by the National Judicial Institute (NJI).

Provincial court judges don’t have the same access or, she said, “the federal funding that allows us to attend” intensive seminars and workshops run by the NJI.

Camp, according to an agreed statement of facts now in evidence at the CJC 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.

Probabilities very often don’t absolutely align with facts because human nature is infinite. But you have to deal with probabilities all the time

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,” she continued, “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.”

It was one of those two independent witnesses, a then-22-year-old woman whose identity is protected, who testified that she, the alleged victim, Wagar and another young man went into the bathroom to smoke a joint and that she directly asked the girl, in front “like of everybody” if “she was going to have sexual relations with Alex, and she admitted she was going to.”

Prosecutor Mograbee suggested in cross-examination that the young woman was a friend of Wagar’s and “had his back,” the inference that she was protecting her friend.

But given that reasonable doubt must benefit an accused person — the legal equivalent of the tie going to the runner in baseball — it’s clear that the trial was more complex than reported, and that it’s possible that Camp’s ultimate decision to acquit Wagar, if not the language he used in doing it, may have been legally correct.

It’s that language — most infamously, when Camp asked the alleged victim why she didn’t “sink your bottom” into the bathroom sink so Wagar “couldn’t penetrate you?” or “keep your knees together” — and the stereotypical beliefs it suggested he may have, which are at the heart of the inquiry here.

Yet the transcripts suggest the judge was struggling to understand how an assault could have occurred without the co-operation of the alleged victim.

McCawley testified that despite her initial abhorrence at what he said at the trial, Camp was neither a misogynist nor a racist, but rather “extremely fair-minded.” She said that during their initial meetings, she struggled to “reconcile the transcripts with the person in front of me.”

She said he was extremely remorseful not only for his remarks to the alleged victim, but also for the damage done to the bench, “an institution I think he loves.”

McCawley is an expert in what’s called “social context education,” whereby judges are asked to challenge themselves for “unconscious bias.” It’s a process that must be continuous, McCawley said, admitting that when she first met Camp, then “a 63-year-old white South African male, I found myself guilty of the stereotypical thinking that I have spent a lifetime railing against.”

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