‘Knees’ judge got it right in the end
When defence lawyer Patrick Flynn stood in the foyer of a Calgary courthouse this week and posed a question, it was in relation to his client, Alexander Scott Wagar, but only sort of.
Wagar, now 29, had just been acquitted of sexual assault for the second time by a second judge.
Flynn had been asked about the conduct of the first judge, Robin Camp, in the first trial, and replied, “I don’t want to be flippant, but would you rather have your judge make the right decision and say something inappropriate, or be politically correct and get the wrong decision?”
But the larger question, as Flynn put it in a text message Friday, is “about judicial independence from political correctness gone amok.”
That’s the heart of the matter still before the Canadian Judicial Council, now deliberating Camp’s fate.
An inquiry committee of the CJC earlier unanimously recommended the 64-yearold be removed from the bench and his $314,000-ayear job.
Camp landed in hot water in late 2015 after his remarks in the 2014 trial, made when he was still on the Alberta Provincial Court and before his elevation to the Federal Court of Canada, became public.
The second acquittal, issued Jan. 31 by Alberta Provincial Court Judge Jerry LeGrandeur, may not factor into the CJC decision, but certainly offers support for the view that for all of Camp’s galling language and gobsmacking comments — for instance, he asked the teenage complainant “why couldn’t you just keep your knees together” or “skew” her pelvis to thwart her alleged assailant — he got the law right.
It also supports what Camp’s lawyer, Frank Addario, argued in a written response to the inquiry committee, in part that “the Council should be reluctant to respond to organized attacks on the judiciary and mindful of the chilling effect of being seen to do so.”
LeGrandeur’s decision by comparison to Camp’s was circumspect.
He didn’t voice reservations about the worthiness of the so-called “rape shield” provisions which prevent unwarranted questions about a complainant’s previous sexual history. He didn’t send Wagar off with a fatherly caution about being “far more gentle” with women. His thinking appeared uninfected by rape myths and stereotypes.
Rather, LeGrandeur did the requisite legal analysis on the credibility of Wagar, the complainant (her identity is protected by a publication ban) and several witnesses, and found that in the end, prosecutors failed to prove beyond a reasonable doubt that the girl had not consented to sex.
Weighing into this was testimony from another girl who was at the flat where the alleged assault took place. She said that she, the complainant, Wager and another young man were all in the bathroom, smoking weed, and that she asked the girl if she was going to have sex with Wagar, and that she replied “Yes.”
She said she and the other young man left the bathroom shortly thereafter, leaving Wagar and the girl there alone. The next morning, when Wagar’s brother (who had a crush on her) accused her of being a slut, she told him, as she later confirmed to police, “That I didn’t care that he (Wagar) did that to me, like I wanted him to do it.”
LeGrandeur said he was left “with a significant concern as to what she actually recalls and whether she is being forthright with the court in her testimony … her credibility in the sense of her reliability and trustworthiness overall is compromised in my view.”
It’s worth remembering that Camp was the object of an organized campaign, as Addario said.
When Camp’s original decision was overturned by the Alberta Appeal Court, which cited “doubts about the trial judge’s understanding” of the law around sexual assault, four well-regarded law professors filed a complaint about him at the CJC.
Alberta Attorney-General Kathleen Ganley followed with a request for a formal inquiry; the “request” is in effect an order which forced the CJC to act.
Publicity surrounding Camp’s remarks was enormous; he became known as the “knees-together” judge.
And none of this occurred in a vacuum, but rather, on the heels of the Jian Ghomeshi prosecution and other high-profile cases, in a climate of growing dissatisfaction with the way sexual assault is handled by the criminal justice system.
It’s funny, but the judiciary often uses “judicial independence” — a collection of protections designed to keep judges properly immune from political interference — as a shield against even the mildest of criticism.
Yet the threat raised by Camp’s lawyer and most recently by Patrick Flynn is not a spectre, but real and increasingly pervasive.
Even the prosecutor in the second Wagar trial, Janice Walsh, appeared to be joining the fray when, after the verdict, she told reporters that she feared the ruling might discourage others from reporting sexual assault and said, “Some of (LeGrandeur’s) comments certainly give pause for future cases of sexual assault.”
Walsh said her office will consider whether to appeal the LeGrandeur decision.
But is it the job of judges and the system to encourage complainants — those complaining of any crime — to report? And how many kicks at the can do prosecutors get before they find the decision, not to mention the language, they like?
NONE OF THIS OCCURRED IN A VACUUM, BUT RATHER, ON THE HEELS OF THE JIAN GHOMESHI PROSECUTION AND OTHER HIGH-PROFILE CASES, IN A CLIMATE OF GROWING DISSATISFACTION WITH THE WAY SEXUAL ASSAULT IS HANDLED BY THE CRIMINAL JUSTICE SYSTEM. — BLATCHFORD