The case of a judge who asked a woman, "Why couldn't you just keep your knees together?" during an Alberta sexual assault trial is raising questions about what kind of behaviour warrants removing a justice from the bench.

Only two judges have been recommended for removal by the Canadian Judicial Council — a group of federally appointed judges tasked with investigating complaints about their peers — since it was created in 1971.

Trevor Farrow

Trevor Farrow, associate dean at Osgoode Hall Law School in Toronto, says it's 'a good thing' that judges don't lightly recommend dismissing their peers. (Osgoode Hall Law School)

In both cases, the judges resigned before the recommendations made it to Parliament, which ultimately decides whether or not to dismiss a Canadian judge.

On Monday, the judicial council announced it was reviewing the conduct of Robin Camp while he was an Alberta provincial court judge in 2014, when he presided over a case involving a 19-year-old woman who alleged she was sexually assaulted by a Calgary man during a house party.

According to the complaint that prompted the review, in addition to the "keep your knees together" comment, Camp asked during the trial, "Why didn't you just sink your bottom down into the basin so he couldn't penetrate you?" (The woman alleged she was sexually assaulted over a sink).

"At numerous points during the proceeding, Justice Camp was dismissive of, if not contemptuous towards, the substantive law of sexual assault and the rules of evidence," the complaint said. "In particular, he showed disregard, if not disdain, for the rape shield provisions under the Criminal Code, the legal definition of consent to sexual touching, and the Criminal Code provision and case law regarding the doctrine of recent complaint.

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

The Canadian Judicial Council must decide whether the complaint against Camp, now a Federal Court judge, has merit and, if so, whether it warrants the establishment of a review panel that could call a public inquiry. 

In the last four decades, the judicial council has ordered public inquiries for 11 complaints against judges. Two of those inquiries are still ongoing. In some cases, the judge resigned before the inquiry was complete. For example, the late Judge Robert Flahiff was convicted in 1999 for laundering money for a drug dealer back in the 1980s, before he became a judge. He resigned before the judicial council finished its inquiry.

In other cases, the council recommended that the judges involved not be removed from the bench — even if there had been inappropriate conduct.

"It's not a fait accompli that if you have engaged in some kind of misconduct you should be removed from office," said Norman Sabourin, the Canadian Judicial Council's executive director, in an interview with CBC News on Tuesday. "Assessing the gravity of a misconduct is a difficult exercise."

Canadian Judicial Council exec on review of judge's behaviour7:06

The overarching question in making that determination, the council said, is whether the judge has the required confidence of the public to continue to preside in court.

So when has the council recommended that a judge be removed? Here are the two cases in which that happened. The details come from documents available on the Canadian Judicial Council's website:

Paul Cosgrove, Ontario Superior Court

On April 22, 2004, Ontario's attorney general at the time, Michael Bryant, asked the council to consider whether Judge Paul Cosgrove should be removed from office based on his conduct in the murder trial of Julia Yvonne Elliott.

The attorney general said Cosgrove had ordered an "unwarranted stay" of proceedings. 

"The proceedings tarnished the administration of justice and turned into an exercise of vilifying the state built on irrelevant, inappropriate and harmful findings," Bryant wrote. "The proceedings trivialized the charter and deprived society and the victim's family of any semblance of justice."

The attorney general's complaint alleged that Cosgrove had demonstrated similar behaviour in other court cases, citing Court of Appeal findings that the judge had "reduced the proceedings to a 'procedural nightmare' for the Crown" and shown a "suspicious attitude toward the government that caused him to misapprehend some of the evidence before him."

On March 30, 2009, after a public inquiry, the Canadian Judicial Council recommended that Cosgrove be removed from office. The judge resigned the following month.

Jean Bienvenue, Superior Court of Quebec

In December 1995, the then attorneys general of Quebec and Canada, Paul Bégin and Allan Rock, asked the Canadian Judicial Council for a public inquiry into the conduct of Judge Jean Bienvenue during the trial of Tracy Théberge, who was convicted of second-degree murder in death of her husband.

According to the inquiry report, Bienvenue made offensive comments about Jewish victims of the Holocaust and about women while sentencing the accused.

"It is said that when women ascend the scale of virtues, they reach higher than men, and I have always believed this. And it is also said, and this too I believe, that when they decide to degrade themselves, they sink to depths to which even the vilest man could not sink," Bienvenue said.

The judge also said: "At the Auschwitz-Birkenau concentration camp in Poland, which I once visited horror-stricken, even the Nazis did not eliminate millions of Jews in a painful or bloody manner. They died in the gas chambers, without suffering."

During the inquiry, Bienvenue argued that he had not meant to be offensive and that he had met with the Canadian Jewish Congress. He also issued a statement apologizing to women offended by his remarks.

On June 25, 1996, four out of five members of the Canadian Judicial Council committee recommended that Bienvenue be removed from office. They wrote, "We believe that if Mr. Justice Bienvenue were to preside over a case, a reasonable and informed person... would have a reasonable apprehension that the judge would not execute his office with the objectivity, impartiality and independence that the public is entitled to expect from a judge."

Bienvenue resigned before the recommendation went to Parliament.

What does the low number of removals mean?

The rarity of judges removing their peers from the bench is a reflection of the value Canada places on an independent judiciary, said Trevor Farrow, a professor and associate dean at Osgoode Hall Law School in Toronto.

"Judges don't recommend removal lightly," he said. "That's a good thing when you're balancing the requirement that judges have the courage and independence to make tough choices in often really challenging circumstances that involve vulnerable people."

At the same time, Farrow said, it's important that the Canadian Judicial Council has "the power to recommend sanctions, including removal if warranted, to maintain the public's trust and confidence."

With files from Kathleen Harris, Alison Crawford and The Canadian Press