The National Association of Women and the Law ("NAWL") is a national non-profit organization which is comprised of lawyers, legal academics, law students and other advocates committed to promoting women's access to justice. Since its establishment in 1974, NAWL has lobbied on many issues, including promoting diversity amongst the judiciary and improving access to courts for all women.

NAWL is deeply concerned about the recent comments made by Justice McClung of the Alberta Court of Appeal in the aftermath of the Supreme Court of Canada's decision in R. v. Ewanchuk - a landmark ruling in which Canada's highest court confirmed that "no means no" in sexual assault cases. In a letter written on Alberta Court of Appeal letterhead and published by the National Post last Friday, Justice McClung suggested that Supreme Court Justice L'Heureux-Dubé's reasons for judgment in R. v Ewanchuk could provide an explanation for male suicides in Quebec. On Saturday, the National Post attributed comments to him to the effect that the victim of Ewanchuk's sexual assaults was not from a "nunnery" and the Supreme Court of Canada was wrong to convict Ewanchuk on the basis that there is no defence of "implied consent" to sexual assault in Canadian law. NAWL's concerns center around the propriety of Justice McClung's comments and the chilling effect they will have on women in pursuing sexual assault complaints before the courts.

"NAWL is deeply concerned about the chilling effect Justice McClung's extra-judicial derogatory comments could have on victims of sexual assault in discouraging them from seeking justice before our courts", said Elizabeth K.P. Grace, a member of NAWL's board of directors and a Toronto lawyer who represents victims of sexual assault. "NAWL is also shocked and saddened by the personalized nature of Justice McClung's attack on Madam Justice L'Heureux-Dubé. His comments have absolutely no rational connection to the substance of her ruling. We cannot have judges at any level, much less a judge of Alberta's highest court, sitting in judgment on sexual assault cases with views which have been discredited by the Supreme Court of Canada as reflecting inappropriate myths and stereotypes," Ms Grace added.

NAWL will file a complaint with the Canadian Judicial Council seeking an investigation into Justice McClung's conduct. In particular, NAWL's complaint will ask the Council to investigate the following:

  1. the propriety of the contents of Justice McClung's letter of February 25, 1999 addressed to the Editor in Chief of the National Post and, in particular, his pointed and explicit personalized attack on his fellow judge, Madam Justice L'Heureux-Dubé;
  2. the propriety of sending the February 25th letter to the National Post on the official letterhead of the Court of Appeal of Alberta;
  3. the propriety of the contents of the follow-up interview apparently given by Justice McClung to the National Post which appears in that newspaper's February 27, 1999 edition and, in particular, the comments attributed to him that the complainant in R. v. Ewanchuk "was not lost on her way home from the nunnery" and related comments;
  4. the propriety of Justice McClung making public comments reflecting his own personal views of the complainant in R. v Ewanchuck after he had delivered his judgment and his official role in the case had ended;
  5. the propriety of his apparent refusal, as reflected in the interview he gave to the National Post on February 27, 1999, to accept the Supreme Court of Canada's judgment in R. v. Ewanchuk as the law of the land; and
  6. whether Justice McClung has become "incapacitated or disabled from the due execution of the office of judge" by reason of any or all of the above items.

NAWL calls on the federal Minister of Justice, Anne McLellan, and provincial Attorneys General to require the Council to convene an inquiry into Justice McClung's conduct under the Judges Act.

A backgrounder is attached to this press release which summarizes the Supreme Court of Canada's ruling in R. v. Ewanchuk and explains the legislative framework governing inquiries into judicial misconduct and incompetency.

Any inquiries and questions should be directed to Bonnie Diamond, Executive Director of NAWL at (613) 241-7570.


The Decision

Last Thursday, the Supreme Court of Canada released its decision in R. v. Ewanchuk, a case from Alberta in which the accused, Steve Ewanchuk, was charged with sexually assaulting a 17-year old woman during a job interview. The evidence at trial was that the complainant refused the sexual advances of Ewanchuk, saying "no" to him on three separate occasions. The trial court and the majority of Alberta's Court of Appeal (with a strongly worded dissenting opinion by that province's Chief Justice) acquitted Ewanchuk on the basis that the complainant's dress and conduct raised a reasonable doubt about her lack of consent.

A nine-judge panel of the Supreme Court of Canada unanimously held that the trial judge erred in his understanding of the defence of consent in sexual assault. Supreme Court Justice L'Heureux-Dubé, with whom Mr. Justice Gonthier and Madam Justice McLachlin expressly agreed, found in her concurring judgment that "implied consent" does not exist as a defence in Canadian law. She held that the trial record conclusively established that the accused's persistent and increasingly serious advances constituted a sexual assault for which he had no defence.

The express acknowledgment by three Supreme Court of Canada justices of the inappropriateness of the comments in this case made by Mr. Justice McClung of the Court of Appeal of Alberta as reflecting archaic myths and stereotypes about the nature of women's involvement in sexual assault, is important if our courts are to be accessible to victims of sexual assault and our laws responsive to the reality of sexual violence against women.

N.A.W.L. supports Madam Justice L'Heureux-Dubé's recognition that Mr. Justice McClung's reasoning derived not from findings of fact, but rather from inappropriate myths and stereotypes. It is essential, as Madam Justice L'Heureux-Dubé held, that "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".

Canadian Judicial Council

The Canadian Judicial Council, the watchdog body for judges, is composed of senior judges from across the country. It derives its powers from the Judges Act. Its mandate is to promote efficiency and uniformity, and to improve the quality of judicial service in the courts. The Council, upon the filing of a complaint, has the discretion to investigate the merits of the complaint. If, however, the federal Justice Minister or a provincial attorney general makes a request to the Council, it has no alternative but to commence an inquiry as to whether or not the judge in question should be removed from office. After an investigation or inquiry, the Council may recommend to the federal Justice Minister that a judge be removed from office.

The Judges Act states that where the Council has determined that a judge,

"has become incapacitated or disabled from the due execution of the office of judge by reason of (a) age or infirmity, (b) having been guilty of misconduct, (c) having failed in the due execution of that office, or (d) having been placed, by his conduct or otherwise, in a position incompatible with the due execution of that office,"

the Council may recommend to the Justice Minister that the judge be removed from office.