Globe and Mail

Legal experts outraged by personal attack on Supreme Court judge

Alberta judge's suicide reference 'is about as low as it gets'

Saturday, February 27, 1999
ALANNA MITCHELL, JILL MAHONEY AND SEAN FINE
With a report from Canadian Press

Calgary, Edmonton and Toronto -- ALANNA MITCHELL in Calgary, JILL MAHONEY in Edmonton, SEAN FINE in Toronto.

Members of the legal community are calling for a review of an Alberta judge who launched what they say was a vicious public attack on Madam Justice Claire L'Heureux-Dubé of the Supreme Court of Canada, touching on a personal tragedy.

Mr. Justice John McClung of the Alberta Court of Appeal said in a letter made public yesterday that Judge L'Heureux-Dubé's criticisms of one of his rulings explain why so many men in Quebec commit suicide. Her husband, Arthur Dubé, a professor of metallurgy, committed suicide in 1978.

Legal scholars said yesterday that fact is known to many and they would be surprised if Judge McClung did not know of this personal tragedy.

If he did know, "that puts a sinister and crude connotation on that second paragraph of the letter that simply boggles the mind," said Chris Levy, a legal scholar at the University of Calgary. "I am deeply shocked by that. It really does have to bring into question whether Justice McClung should remain on the bench."

Judge McClung, grandson of the famous Alberta feminist Nellie McClung, has earned a reputation for controversy in other cases.

Prof. Levy said the letter represents one of the lowest points in the history of Canada's judiciary.
Normally the legal profession in Canada is intellectually vigorous but decidedly polite.

"This is about as low as it gets in my view," he said.

"The emotions run from shock and disgust to outrage," Barry Gorlick, president of the Canadian Bar Association, said of members' reaction.

Although the association plans no action, Mr. Gorlick said he is confident a complaint against Judge McClung will be filed with the Canadian Judicial Council.

Bonnie Diamond, executive director of the Ottawa-based National Association of Women and the Law, said her group will decide this weekend whether to lodge a formal complaint against Judge McClung. She said his letter is an indication he has trivialized Thursday's ground-breaking Supreme Court ruling and may be unfit to sit on the bench.

"How could a woman who was a victim of sexual assault come before him?" she asked.

Prominent legal scholar Kathleen Mahoney of the University of Calgary said she hopes the judicial council will look into the matter.

"I'm stunned. I'm utterly stunned and amazed," she said. "It's completely unprecedented that you would see such a vicious personal attack on a Supreme Court judge of Canada, or any judge."

The council, which has the power to recommend the ouster from office of a federally appointed judge, would not say late yesterday whether it had already received a complaint about Judge McClung.

Justice Minister Anne McLellan also has the power to recommend a federally appointed judge be removed. She would not comment yesterday on Judge McClung's letter.

Judge McClung could not be reached for comment.

Political science professor Peter Russell of the University of Toronto said that Judge McClung could face removal from the bench for his published comments, particularly if he knew when he wrote the letter that Judge L'Heureux-Dubé's husband had taken his own life.

"It's pretty reprehensible behaviour. I mean, imagine the misery and how horrible that is for L'Heureux-Dubé."

Legal scholars said the episode brings Alberta's justice system into terrible disrepute.

"We don't look that good, do we?" said Prof. Levy, adding: "It can only suggest to the rest of Canada that something has gone wrong and that the vision of justice in Alberta is somehow tainted."

Alberta Justice Minister Jon Havelock declined to comment on the case yesterday, as did Terry Clackson, president of the Law Society of Alberta.

Ted DeCoste, a law professor at the University of Alberta, said Judge McClung's use of the media to comment on a Supreme Court ruling is "unprecedented and unparalleled" in this country. He said it is reason for more transparency and democracy in judicial appointments.

The incident was precipitated earlier this week by a ruling from the Supreme Court of Canada on an appeal on which Judge McClung had ruled. That case has become famous in legal circles as the "bonnet and crinolines" one because Judge McClung, upholding a man's acquittal on a sexual-assault charge, noted that the 17-year-old woman had been dressed in a T-shirt and shorts, not in a bonnet and crinolines.

The Supreme Court overturned the acquittal of Steve Brian Ewanchuk, entered a conviction instead and sent the case to a lower court for sentencing.

Judge L'Heureux-Dubé wrote a concurring opinion that was sharply critical of the crinolines comment, saying that the case turned on myths and stereotypes.

The two judges had tangled professionally before, notably over Judge McClung's controversial decision on the case of Delwin Vriend, a homosexual who was fired from his job. Judge McClung said Alberta did not have to protect gays from violations of the province's human- rights code. Last year the Supreme Court simply wrote that protection into the law.

WHAT THE LETTER SAID

"Madam Justice Claire L'Heureux-Dubé's graceless slide into personal invective in Thursday's judgment in the Ewanchuk case allows some response. It issued with 'the added bitterness of an old friend.'

"Whether the Ewanchuk case will promote the fundamental right of every accused Canadian to a fair trial will have to be left to the academics. Yet there may be one immediate benefit. The personal convictions of the judge, delivered again from her judicial chair, could provide a plausible explanation for the disparate (and growing) number of male suicides being reported in the province of Quebec.

"Mr. Justice J. W. McClung, Court of Appeal of Alberta, Edmonton." CP

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