Globe and Mail

Spotlight on Judge McClung

Thursday, March 4, 1999
MARGARET BATEMAN
The Globe and Mail

IN ALBERTA -- 'Bonnets and crinolines" -- words reflecting a bygone era. But in the context of the ruling by Alberta Appeal Court Justice John McClung in a 1994 sexual-assault case, they are igniting emotions across the country.

The situation has been reported ceaselessly. Steve Ewanchuk, an Edmonton man, was charged with sexually assaulting a young woman while he conducted a job interview. Ruling on the case, Judge McClung concluded that the man's advances were "less criminal than hormonal" even though the woman had said no to him several times. She had dressed in shorts and a T-shirt, and Judge McClung noted that she had "not presented herself . . . in a bonnet and crinolines." He also stated that "a well-chosen expletive, a slap in the face or . . . a well-directed knee" would have been a better response than charging Mr. Ewanchuk.

The Supreme Court of Canada last week overruled Judge McClung, and sent an unequivocal message by convicting Mr. Ewanchuk rather than referring his case back to Alberta. Attached to this ruling was a precise and cutting rebuttal of the legal grounding and the choice of language in Judge McClung's ruling by Supreme Court Justice Claire L'Heureux-Dubé. Judge McClung reacted with his now-infamous letter accusing the Honourable Madam Justice of a personal attack on him, and implying she provoked a higher rate of male suicides in Quebec.

Judge McClung is known in Alberta's legal community by the (never more appropriate) nickname "Buzz." He has a reputation as a social libertarian, and is renowned for his ruling in the Vriend case, in which he upheld the exclusion of homosexuals from Alberta's human-rights legislation and spoke out against "activist judges" who intrude on the role of legislatures. The Supreme Court overturned him on that case as well, writing legislated protection for homosexuals into Alberta law.

The Supreme Court's Vriend reversal was a political grenade lobbed directly into the caucus of Premier Ralph Klein. But he deactivated it with tradeoffs, agreeing to examine provincially legislated fences against the further extension of rights to gay people in Alberta, and playing up the issue of activist judges. This experience made Mr. Klein the perfect keynote speaker for the recent United Alternative convention, where he cautioned his audience against adopting a social-issues agenda, and rebuked "judge-made law" to a standing ovation. Blaming judicial interpretation of the Charter of Rights for an inability to push a conservative social or moral agenda is a critical component in crafting the type of compromise required to merge the disparate forces of a united alternative.

That judicial activism can be such a handy tool in political spin helps explain why the unravelling of Judge McClung will be watched with palpable regret by many here in Alberta. He was pretty much a local hero to those who seek to avoid application of the Charter to political and legislative agendas.

But his ruling on Mr. Ewanchuk and his unseemly outburst may not rouse the same levels of unquestioning support in certain circles that his Vriend decision did. Attempts to dismiss the issues in the Ewanchuk ruling as driven by feminists or "leftists" are entirely predictable. But it's perfectly clear that the Supreme Court's ruling isn't a "feminist" decision. The ruling was unanimous. All nine justices agreed that Judge McClung's earlier decision was simply not well grounded in the law. No means no is a legal principle in Canada, not a feminist one.

Judge McClung's interpretation that Mr. Ewanchuk was a victim of female miscommunication and overeagerness to prosecute will be open to second-guessing now that the media have reported that he had three prior convictions for rape and one for sexual assault.

Even diehard anti-feminists who would normally smirk at the bent of his attack against Judge L'Heureux-Dubé must squirm at his reference to her driving men to suicide. This was not facetious; it was inexcusable. Nor does he get off as merely a victim of the tyranny of political correctness. If his choice of language in a ruling displayed a lack of understanding of the law, or of the dynamic of intimidation in a crime such as sexual assault, or a lack of appreciation of the seriousness of the crime before the court, a higher-court judge should respond.

In a public apology on Monday, Judge McClung admitted to an "overwhelming error" in sending his letter and expressed sincere regret. But the apology included equivocations that give us glimpses of a man who blames others for provoking him, uses language recklessly and then claims his remarks were off the record, and tries to dissociate himself from what he must ultimately own -- the meaning of his words, and their consequences.

His primary offence is exposing himself in public, and there is no tougher court in the land than the court of public opinion.

Margaret Bateman, a former senior public servant with previous Alberta governments, is a partner in the public-affairs consulting firm Calder Bateman.

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