Globe and Mail

Judicial council defends judge's 'robust' language in Alberta sexual-assault case

Supreme Court Justice did not show feminist bias or launch personal attack in strong criticism of lower-court judgment, review board says

Friday, April 2, 1999
KIRK MAKIN
Justice Reporter, The Globe and Mail

A Supreme Court of Canada judge was perfectly within her rights to use "robust" language in rejecting the viewpoint of an Alberta judge in a recent sexual-assault case, the Canadian Judicial Council ruled yesterday.

In throwing out a complaint against Madam Justice Claire L'Heureux-Dubé for her role in the case of Regina v. Ewanchuk, the council endorsed her right to deliver bold and fearless opinions.

"Canadians must be confident that they have an independent judiciary that is free to say what it thinks about the case it is deciding," the council said in a letter to the complainant, REAL Women of Canada.

"The language used by the judge in this case was certainly robust, but well within the ambit of the case, and therefore not outside of the realm of appropriate judicial conduct."

In her concurring reasons on the Ewanchuk judgment, Judge L'Heureux-Dubé and Mr. Justice Charles Gonthier took Alberta Court of Appeal Judge John McClung to task for saying a sexual-assault victim was hardly dressed "in bonnet and crinolines" when she arrived for a job interview with Steve Ewanchuk.

They said the Alberta judgment relied on "inappropriate" myths and stereotypes.

"Complainants should be able to rely on a system free from such myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions," the judges stated.

REAL Women, a conservative women's group, complained that Judge L'Heureux-Dubé has consistently promoted a "feminist bias" in her Supreme Court judgments.

It said that in the Ewanchuk case, her biased judgment strayed into "demeaning personal invective," effectively humiliating a lower court judge with no recourse available to him and rendering Judge L'Heureux-Dubé unsuitable to remain on the Supreme Court bench.

In its decision, the judicial council said Judge L'Heureux-Dubé "was entitled in the discharge of her judicial responsibility to say what she thought should be said within the context of the case."

The council also rejected claims by REAL Women that Judge L'Heureux-Dubé had a history of dubious connections to feminist groups such as the Canadian Research Institute for the Advancement of Women and the International Federation of Women Lawyers.

In regard to the research institute, the judicial council said her affiliation is far in the past and has no relevance to the complaint.

"As you will understand, some judges belong to research, educational, professional and social organizations, and doing so can hardly be regarded as judicial misconduct," said the letter to REAL Women President Jeannine Lebel.

It also rejected a suggestion that Judge L'Heureux-Dubé should not have quoted from the UN Convention Against All Forms of Discrimination Against Women in her judgment. The convention has been ratified by Canada and 162 other countries, the council noted.

In a letter to the council from Judge L'Heureux-Dubé also released yesterday, the judge said she has never belonged to any political organization or political party.

"With respect to the International Federation of Women Lawyers, I am not now -- nor have I ever been, to the best of my recollection -- affiliated with this organization," she added.

The complaint was adjudicated for the judicial council by its chairman, Chief Justice of British Columbia Allan McEachern.

In cases of actual misconduct, a judicial council recommendation can theoretically lead to the removal of a judge by Parliament.

The council is still considering several complaints against Judge McClung in connection with a letter he wrote to the National Post In the Ewanchuk case criticizing Judge L'Heureux-Dubé.


DEFENDING THE JUDGE

From yesterday's Canadian Judicial Council decision:

"The concurring judgment of Madam Justice L'Heureux-Dubé includes some strong language. But what she said was relevant to the case she was deciding, particularly in expressing her views about the majority judgment of the Court of Appeal of Alberta under appeal."

"Chief Justice McEachern advises that he cannot find that Madam Justice L'Heureux-Dubé failed to interpret the law impartially and objectively, since in this case all the judges of the Supreme Court of Canada were agreed in the result.

"The proper administration of justice requires that judges, who are often called upon to make difficult and sometimes unpopular decisions, must not be deterred from doing what they think is right, or from saying what they think should be said, in their reasons for judgment."

"Canadians should be confident that they have an independent judiciary that is free to say what it thinks about the case it is deciding."

"Chief Justice McEachern advises that the law is clear that the common-law principle of judicial independence, an integral part of the rule of law confirmed in the Canadian Charter of Rights and Freedoms, requires that judges be free to express themselves in their reasons for judgment without fear of punishment or reprisal, so long as they confine themselves within the broad parameters of the case they are deciding.

"Chief Justice McEachern points out that once decisions are made, all members of the public are free, privately or publicly, to disagree with and criticize such decisions. You have chosen to exercise this right, which is also a reflection of our democratic society under the rule of law.


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