Globe and Mail

Alberta judge to face formal complaint

Rare exchange between judges leaves legal community 'shocked, appalled'

Monday, March 1, 1999
JILL MAHONEY
Alberta Bureau

Edmonton -- Fallout from last week's Supreme Court ruling on sexual assault has sparked a formal complaint against a senior Alberta judge and a call for a new trial for the man convicted in the case.

The National Council of Women of Canada will launch a complaint with the Canadian Judicial Council today expressing "extreme concern" about Mr. Justice John McClung of the Alberta Court of Appeal.

Judge McClung wrote a public letter late last week responding to the Supreme Court decision, which struck down one of his rulings.

In the letter, he characterized Madam Justice Claire L'Heureux-Dubé's reasons as "personal invective" and said her convictions could account for the growing number of male suicides in Quebec.

"We feel that his behaviour has been quite inappropriate," said Elizabeth Hutchinson, president of the National Council of Women of Canada, an umbrella organization that represents about 50 women's groups across the country.

When reached at his Edmonton office yesterday morning, Judge McClung said it was not "appropriate" for him to comment and hung up on a reporter.

But his close friend of 40 years, lawyer Ammon Ackroyd, said Judge McClung was very "upset" by Judge L'Heureux-Dubé, who made strong comments about his ruling, calling some of his reasons "inappropriate" and rooted in stereotypes.

However, experts say Judge McClung should not have viewed Judge L'Heureux-Dubé's remarks as a personal attack, since it has become common for Supreme Court judges to use powerful language when speaking of judgments, even those of their colleagues.

In published comments this weekend, Judge McClung insisted he did not realize Judge L'Heureux-Dubé's husband committed suicide in 1978.

But, enraging women's groups further, he said the 17-year-old victim "was not lost on her way home from the nunnery." He also said his original comment in the 1998 Court of Appeal ruling that the woman wasn't wearing a "bonnet and crinolines" was a reference to her "sexual maturity" because she had a child and was living with her boyfriend.

"To make comments about her clothing, that she wasn't wearing a bonnet and crinolines, and then furthermore . . . that he said that she wasn't on her way home from the nunnery is quite offensive," Ms. Hutchinson said, adding that her organization will also object to these remarks in its complaint.

Given that judges rarely make critical public comments about each other, Judge McClung's letter and remarks have created a stir among the country's legal community.

"Everyone seems very surprised and taken aback, as I am myself. It's not something that any of us recall ever seeing before," said Paul Moreau, who has argued cases in front of Judge McClung both as a Crown prosecutor and defence lawyer.

"They're stunned; they're shocked; they're appalled. People seem to have that universal response because it is so unusual and it seems to be so personal and hurtful," said Kathleen Mahoney, a law professor at the University of Calgary and a friend of Judge L'Heureux-Dubé.

Many observers find Judge McClung's remarks all the more unbelievable because he is the grandson of Nellie McClung, an early feminist who fought to get women the vote. "She must be rotating in her grave," Ms. Hutchinson said.

Meanwhile, the man at the centre of the controversial case, Steve Ewanchuk, has hired a new lawyer who is considering asking the Supreme Court to grant a new trial.

In Thursday's ruling, the Supreme Court unanimously agreed that the notion of implied consent does not exist in law and convicted Mr. Ewanchuk of sexual assault. He will be sentenced by an Alberta judge.

"The law is clarified, so give him a new trial," said criminal lawyer Brian Beresh. "All people in the future have that benefit. If tomorrow there's a trial in Edmonton, that accused has the benefit of the wisdom of the Supreme Court. Why shouldn't this accused?"

But an application for a new trial would be highly unusual and unlikely to succeed, Prof. Mahoney said.

"Once the Supreme Court has spoken on a case, it's over," she said.

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