Globe and Mail

Judge apologizes, but won't quit

McClung admits his attack on Supreme Court justice was an 'overwhelming error'

Tuesday, March 2, 1999
JILL MAHONEY
With a report from Erin Anderssen in Ottawa.

Edmonton -- The Alberta judge whose comments about a sexual-assault ruling touched off a national firestorm publicly apologized yesterday for his "overwhelming error" but is refusing to resign.

Mr. Justice John McClung of the Alberta Court of Appeal said he allowed himself to be "provoked" into writing a letter to a newspaper criticizing Madam Justice Claire L'Heureux-Dubé of the Supreme Court of Canada.

"I deeply regret that what has happened has ignited a debate which could place the administration of justice in an unfortunate light. If so, that was unintentional as I have the highest regard for the justice system in which I serve," Judge McClung says in his written statement.

Reached at his Edmonton office yesterday, Judge McClung said he has no intention of resigning.

"I'm sorry the question is being asked. . . . There's no plans made. I don't know what's going to happen there," he said.

Judge McClung said he was aware of the "dissatisfaction" over his actions, but "I seem to be more a prisoner of events than anything, so I don't know what's happening." He would not elaborate.

Judge McClung wrote the letter to the editor after reading Thursday's unanimous Supreme Court ruling, which overturned a decision he wrote. Judge L'Heureux-Dubé was sharply critical of Judge McClung's ruling, which has become infamous because it acquitted Steve Ewanchuk in part because his 17-year-old victim was wearing shorts and a T-shirt, not a "bonnet and crinolines."
In his two-paragraph letter, Judge McClung characterized Judge L'Heureux-Dubé's written reasons as a "graceless slide into personal invective" and said her personal convictions may be the reason the male-suicide rate in Quebec is increasing.

Observers were shocked by the comments, especially since Judge L'Heureux-Dubé's husband, Arthur Dubé, killed himself in 1978, a fact that is widely known in the legal community.

Judge McClung said yesterday he was unaware of Judge L'Heureux-Dubé's personal tragedy and wrote an apology to her as soon as he realized the circumstances.

"It was a cruel coincidence to which she ought not to have been subjected. But it was a coincidence for which I am answerable," Judge McClung says in his page-long letter, which was sent out via a news wire service yesterday morning.

In the letter, Judge McClung also addresses his remarks published on the weekend that the woman who was assaulted "was not lost on her way home from the nunnery," has wrongly been "portrayed as a wide-eyed little girl who didn't know what was happening to her" and that the "bonnet and crinolines" comment was not a reference to her attire, but her "sexual maturity" because she had a baby and was living with her boyfriend.

In yesterday's statement, Judge McClung said he believed his remarks in the interview with the National Post were off the record.

His apology did little to appease women's groups and others, who continued their calls for an investigation into his conduct by the Canadian Judicial Council. The judicial council will consider the complaints and determine whether they are serious enough to warrant a more formal investigation.

"We believe he is unfit to serve," said Bonnie Diamond, executive director of the National Association of Women and the Law.

The group lodged a formal complaint yesterday, asking for a public inquiry into his behaviour. The complaint also calls on the federal and provincial justice ministers to intervene and force the judicial council to begin an inquiry.

Ms. Diamond said failure to discipline Judge McClung would send a dangerous message to women and potential perpetrators that the law on sexual assault is open to interpretation.

The National Council of Women of Canada and New Democratic Party Leader Alexa McDonough also filed complaints with the judicial council yesterday. The National Action Committee on the Status of Women also plans to do so.

Even with yesterday's apology, Judge McClung is "guilty of very, very serious improprieties," said Chris Levy, a law professor at the University of Calgary. The only question now, he said, is that if the judicial council finds against Judge McClung, whether the apology would be sufficient to reduce his inevitable penalty to a severe reprimand from outright firing. (Dismissal would require a vote in both the Commons and the Senate.)

"He admits in his first paragraph that he allowed himself to be provoked into writing to the National Post. That is extremely bad judgment. I don't think we hire our judges to display extremely bad judgment," Prof. Levy said.

Prof. Levy said Judge McClung's explanation that his suicide remark was meant as a "facetious chide" to Judge L'Heureux-Dubé is unacceptable because his original comment is essentially an accusation that she is responsible for people killing themselves.

McCLUNG'S APOLOGY

Text of yesterday's apology by Mr. Justice John McClung:

For 40 years I have served the Courts of Alberta at 4 different levels and to the best of my ability. But last week I made an overwhelming error. When I read the Supplementary Reasons for Judgment of Madam Justice L'Heureux-Dubé in the Ewenchuk [correct spelling is Ewanchuk] case, I allowed myself to be provoked into writing to the National Post. It was published on February 26th. The letter has been widely quoted and condemned.

I wish to acknowledge that there was no justification for my doing so. I regret my reaction and appreciate that no circumstances could justify the media as the avenue for the expression of my disappointment.

My letter made reference to current suicide statistics in the Province of Quebec and was only included as a facetious chide to the Judge. I thought it would be so understood. What compounded my indiscretion was the fact, unknown to me, that Justice L'Heureux-Dubé had undergone a suicide bereavement in her own family. I immediately conveyed my explanation and apology to her later the same day. I sincerely regret what happened and have so advised her. It was a cruel coincidence to which she ought not to have been subjected. But it was a coincidence for which I am answerable.

On Saturday, February 27th, the National Post attributed to me further remarks about the Ewenchuk case. Any remarks were not designed to call into question the authority or finality of the Supreme Court of Canada resolution of the case, nor were they designed to impugn the complainant involved in the Ewenchuk assault. The discussion I had with Mr. Ohler, the reporter, was held as background to the issues in the case. I thought it was an off the record discussion as were discussions the previous day. Obviously Mr. Ohler did not. That in hindsight was also my mistake.

To be clear, I recognize the overriding authority of the Supreme Court of Canada and any suggestion to the contrary is incorrect. The Canadian system of justice could not function in the absence of a hierarchy of Courts.

I deeply regret that what has happened has ignited a debate which could place the administration of justice in an unfortunate light. If so, that was unintentional as I have the highest regard for the justice system in which I serve.

WHAT WAS SAID

"I seem to be more a prisoner of events than anything, so I don't know what's happening." Mr. Justice John McClung

"He's right out of step with the times." National Council of Women of Canada vice-president Marianne Wilkinson

"What kind of apology was it? He apologizes with one word, and in the next word he's already talking about extenuating circumstances." NDP Leader Alexa McDonough

"We work very hard with women to tell them with confidence that the benches have been cleared of those myths and stereotypes and this sets everything back a great deal." Bonnie Diamond, executive director of the National Association of Women and the Law

"Simply because he's retracting his original statements does not take away from his original thoughts and ideas on the issue." Kripa Sekhar, vice- president of the National Action Committee on the Status of Women

"There are too many facts missing in this story." Steve Ewanchuk

"In that last paragraph, if we read his words with the precision that perhaps a lawyer might write with and a lawyer might read with, what he's doing, I think, is regretting the fact that there is a debate, but he's not accepting sole responsibility for that." Chris Levy, a law professor at the University of Calgary

Copyright © 1999 The Globe and Mail