National Post

Saturday, February 27, 1999

Judge reiterates belief that teen wasn't assaulted
Didn't come from 'nunnery': Suicide jibe backfires after it is revealed top-court judge's husband killed self

Shawn Ohler
National Post

Supreme Court Justice Claire L'Heureux-Dube
A senior Alberta judge whose controversial ruling in a sex-assault case was reversed by the Supreme Court sought yesterday to validate his original judgment, maintaining the assault victim "was not lost on her way home from the nunnery."

In an interview with the National Post, Justice John McClung of the Alberta Court of Appeal said it was wrong for the Supreme Court to convict Steve Ewanchuk because the Crown never disproved that his 17-year-old victim consented to his advances.

"One of the fundamental tenets of the criminal law is that the accused is to be punished for what he intended, and that didn't happen in this case," Judge McClung said.

He added that the victim has been "portrayed as a wide-eyed little girl who didn't know what was happening to her. Well, come on, now."

The comments follow Judge McClung's unprecedented rebuttal of the Supreme Court's decision, which eliminated the blurry lines of consent in sexual-assault cases by unanimously declaring that "no means no."

In a letter sent to the National Post after the ruling was handed down, Judge McClung attacked Supreme Court Justice Claire L'Heureux-Dube, linking Quebec's growing male suicide rate with her written opinion in the landmark case.

It emerged yesterday that Judge L'Heureux-Dube's husband had committed suicide in 1978, a fact widely known in Canadian legal circles.

"Oh, I didn't know that. God, no, I didn't know," Judge McClung said.

"Actually, if I had two tongues, I'd have one in each cheek. I was just trying to give my friend Claire a prod because of her consistent anti-male response on these matters."

He insisted the suicide reference was prompted by a recent newspaper story that outlined Quebec's rising male suicide rate.

"It was not spawned by the knowledge of her husband's ultimate fate," he said.

Judge McClung's letter drew immediate fire from Canadian legalists, including many who called for an immediate investigation by the Canadian Judicial Council.

"His comments were appalling and completely unprecedented," said Kathleen Mahoney, a law professor at University of Calgary and a friend of Judge L'Heureux-Dube.

"I've never seen anything like this in my lifetime, in any court anywhere. I've seen judges make some fairly intemperate comments, but I've never seen this sort of personal attack anywhere. I hope a complaint is made with the Canadian Judicial Council."

The council has the power to recommend that judges be removed from the bench. That has happened only once before, in 1996, after Quebec Superior Court Judge Jean Bienvenue was investigated for outrageous remarks he made about women and the Holocaust during a woman's murder trial. Judge Bienvenue resigned three days after the recommendation was made.

Liberal and New Democratic MPs said yesterday that Judge McClung's letter warranted discipline, but the Reform party championed his right to speak out.

In the letter, Judge McClung wrote: "The personal convictions of the judge, delivered again from her judicial chair, could provide a plausible explanation for the disparate (and growing) number of male suicides being reported in the province of Quebec."

Judge McClung said he attacked Judge L'Heureux-Dube because he was stung by her assertion in her ruling that he perpetuated "archaic myths and stereotypes."

"I don't like to be accused of living my professional life in a fantasy world of stereotypes and myths. That's going too far," he said.

He also defended writing in his 1998 Appeal Court ruling that Ewanchuk's victim "did not present herself to Ewanchuk . . . in a bonnet or crinolines," a line that particularly enraged women's groups. Ewanchuk assaulted the girl, who was wearing shorts and a T-shirt on a sweltering day, while he was interviewing her for a job selling wood-working products.

"That was in the judgment because I was talking about her sexual maturity, not the way she was dressed," he said.

"If you read the whole paragraph, what follows is the fact that she had a six-month-old child and she was living with her boyfriend with another couple."

Even though Ewanchuk has been convicted, he is not yet in custody. He is to be summoned before Alberta's Court of Queen's Bench for sentencing.

Copyright Southam Inc.