New Trial Ordered in Sex Assault Case After Ontario Judge Refuses to Explain Verdict

Justice Susanne Goodman failed to produce reasons for acquittal

despite request from Crown

By Alison Crawford, 

Ontario's Court of Appeal has thrown out an acquittal in a sexual assault trial and ordered a new one after the trial judge failed to deliver her reasons for her ruling. Canada's judicial watchdog is now looking into the judge's conduct. (CBC)

Canada's judicial watchdog is initiating a complaint against Ontario Superior Court Justice Susanne Goodman after the province's appeal court issued a blistering rebuke of her judicial duties.

In a decision handed down Thursday, Ontario Court of Appeal Justices David Paciocco, Jean MacFarland and David Doherty quashed Goodman's acquittal of Stanislaw Sliwka, who was accused of viciously physically and sexually assaulting a woman over several months. The judges ordered a new trial.

"Our order directing a new trial is a terrible result for everyone involved in this proceeding," the justices wrote. "The trial judge's failure to give reasons, despite her repeated promises to do so, has frustrated the proper administration of justice."

Not only that, the justices noted this wasn't the first time Goodman had failed to do her job.

"Nor is this the first time that this trial judge's failure to provide reasons has required this court to order a new trial. It must be the last time," reads the ruling.

Norman Sabourin, executive director of the Canadian Judicial Council, told CBC News Thursday that he had read the decision from the appeal court relating to the Sliwka case and had "decided to initiate a complaint against Justice Goodman, in keeping with my authority," 

Goodman acquitted Sliwka on all charges on March 11, 2016, without thoroughly explaining how she arrived at her decision. She told the court she needed three more days to issue her detailed written reasons.

She never did.

Crown counsel, who wanted to appeal the decision, was stuck. After months of contacting the trial judge's office and not getting a written decision, the prosecutor wrote directly to Goodman to advise her that "as no reasons had been produced, the Crown would argue that the appeal should proceed on the basis that no further reasons for judgement existed."

Goodman never responded.

Ontario Court of Appeal

'Brief' oral comments

In her submission to the Court of Appeal, the Crown's lawyer Karen Shai argued that Goodman's "brief comments on March 11, 2016, were never intended as an adequate explanation of her acquittal of the respondent on all counts."

Goodman submitted that while brief and "arguably less than can reasonably be expected from a trial judge, [the comments] adequately explained the trial judge's reasons for acquitting the respondent." She added that if the Crown really wanted to appeal her verdict, prosecutors could just review the trial record.

The panel of appeal court judges had none of it.

"Trial judges must give reasons for their verdicts. Reasons that explain to the parties and the public the result arrived at by the trial judge are crucial to maintaining the proper level of transparency and accountability essential to the maintenance of the integrity of the trial process and public confidence in the process," they wrote in Thursday's decision.

As for Goodman's brief oral comments at the time of her verdict, the appeal court said she didn't explain how she analyzed evidence or contradictions in testimony. They said her "silence" on evidence given by police raises questions, not to mention the fact she never addressed each of the eight counts separately.

"There is no way of knowing how the trial judge arrived at her verdicts. Without any semblance of a road map to those verdicts, the Crown's right to appeal from the acquittals is rendered illusory," wrote the panel.

Goodman was a family lawyer before she was appointed to Ontario's Superior Court in 2000. 

The Ontario Court of Appeal ordered a new trial in another one of Goodman's cases in 2011 after she took 25 months to deliver her ruling in the case of a man who'd been caught carrying a loaded weapon.

'Couldn't You Just keep Your Knees together?' - Judge

Federal Court judge under review for berating sex assault complainant

Robin Camp sat on Alberta provincial court when he asked, 'Couldn't you just keep your knees together?'

The Canadian Judicial Council is reviewing the conduct of federal court justice Robin Camp when he presided over a 2014 sexual assault case as an Alberta Provincial Court judge. (Andrew Balfour/Federal Court of Canada)

By Kathleen Harris, Alison Crawford, CBC News

​The Canadian Judicial Council is reviewing the conduct of a Federal Court judge who questioned the efforts of a sexual assault complainant to fend off her attacker.

The council announced Monday it will review the behaviour of Robin Camp during a 2014 case he adjudicated while serving as an Alberta provincial court judge. The case involved the alleged rape of a 19-year-old woman by a Calgary man, whom she accused of sexually assaulting her over a bathroom sink during a house party.

The review comes after a complaint from four law professors at Dalhousie University and the University of Calgary who 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 case, 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?"

'The legal rules that Justice Camp took issue with were those 

aimed at removing from the law outdated and discredited 

stereotypes about women and sexual violence.'

- Complaint to Canadian Judicial Council

The complaint alleges Camp "showed disregard, if not disdain" for the rape shield provisions of the Criminal Code, the legal definition of consent to sexual touching and other Criminal Code provisions.

"His articulated disrespect for these legal rules was, in some instances, combined with a refusal to apply them," the complaint states.

"Consistently, the legal rules that Justice Camp took issue with were those aimed at removing from the law outdated and discredited stereotypes about women and sexual violence. In a dismissive manner, Justice Camp repeatedly referred to the legal rules requiring that these stereotypes not be relied upon as 'contemporary thinking.' "

Professors: Case undermines public confidence in justice system

The professors said the events "undermine public confidence in the fair administration of justice."

The Federal Court issued a statement noting Camp is "fully co-operating" with the review and that he will not be assigned any new cases related to sexual conduct.

Camp issued a statement through the court apologizing for causing "deep and significant pain" to the complainant and to all women whom he might have dissuaded from reporting sexual abuse and whom he caused to feel "anger, frustration and despair."

"I am speaking particularly to those who hesitate to come forward to report abuse of any kind and who are reluctant to give evidence about abuse, sexual or otherwise," the statement said. "To the extent that what I have said discourages any person from reporting abuse, or from testifying about it, I am truly sorry. I will do all in my power to learn from this and to never repeat these mistakes."

The Federal Court said Camp is taking steps to learn from his behaviour.

"Furthermore, Justice Camp has volunteered to undertake a program of gender sensitivity counselling at his own expense and on his own time in order to understand more fully the implications and significance of his comments before the provincial court of Alberta, and he will ensure that he does not make similar comments in the future," the statement reads.

Camp was appointed to the Federal Court by former Conservative justice minister Peter MacKay on June 26, 2015.

New trial ordered for alleged offender

Alexander Scott Wagar was acquitted in the 2014 sexual assault case, but last month, Alberta's Court of Appeal ordered a new trial.

'I have never seen a judgment, and certainly not one

 in the past decade, which showed such shocking 

statements that are so out of keeping with modern 

Canadian values.'

- Alice Woolley, University of Calgary Faculty of Law

​Woolley, one of the four academics who filed the complaint to the judicial council, said Camp's behaviour is unworthy of a judge.

"I have never seen a judgment, and certainly not one in the past decade, which showed such shocking statements that are so out of keeping with modern Canadian values," she told CBC News.

Since the issue is also about Camp's refusal to apply the law, it is not only a matter of gender sensitivity, she said.

"Taking him off cases with a sexual aspect to me doesn't really address the problem," she said. "I don't know why his apology is directed to women. Men are also affected by things that bring the administration of justice into disrepute."

The council is chaired by the chief justice of Canada, currently Beverley McLachlin. There are 38 other council members, who are the chief justices and associate chief justices of Canada's superior courts, senior judges of the territorial courts and the chief justice of the Court Martial Appeal Court of Canada.

The council's executive director, Norman Sabourin, said a chief justice and a member of the conduct committee will investigate the case, which could lead to a dismissal of the complaint, an order requiring the subject of the complaint to receive counselling or coaching or the establishment of a review panel that could call a public inquiry.

The council can also recommend the removal of a judge from the bench.

However, it is ultimately up to Parliament to decide whether or not to act on such a recommendation, as only Parliament can remove a judge from office.

Removing a judge does not happen often and "would be a very extreme case," said Trevor Farrow, a professor and associate dean at Osgoode Hall Law School in Toronto.

Farrow said he believes the Canadian Judicial Council's system of judges holding other judges accountable works.

"I think it strikes the right balance between public accountability and respect for the independence of the judiciary," he said.

"Unfortunately, from time to time, like in the rest of society, we see judges who ... are behind the curve, and it seems to me that certainly the ... [Camp] case is an example of that."  

Sabourin could not speak specifically about the case but said, generally, Canadians hold judges to a "very high standard."

"They expect competence, they expect judgment and they expect their judges to be up to date with their environment, the social context," he said. "People expect that judges will act at all times with the highest degree of propriety, so when comments are made that suggest perhaps a disconnect with the social context about sexual assault, the relationship between victims and victimizers, it's a serious matter."

Camp's comments were entered by the Crown as evidence in the appeal case filed last September, nine months before his appointment to the Federal Court. CBC News has asked former justice minister Peter MacKay, who did not run for re-election in the fall election, what vetting or scrutiny was given to Camp's record before his appointment, but has yet to receive a response.