National Post

Saturday, February 27, 1999

'Best, worst' of British legal tradition seen in Judge McClung's decisions

Shawn Ohler
National Post

Walter Tychnowicz, The Edmonton Journal / Justice John McClung's controversial rulings have drawn criticism for their conservatism, especially on relations between the sexes.

During his 19 years on the Alberta Court of Appeal, Justice John McClung has been alternately hailed as a valuable independent thinker and derided for stereotypical views his critics say are rooted in the 1950s.

The 63-year-old judge, who was born, raised, and educated in Edmonton and is a grandson of Alberta's famed suffragist and feminist Nellie McClung, followed his father Jack into University of Alberta's law school.

He graduated in 1958, was admitted to the bar, and had an enormously successful 18-year career as a criminal-defence lawyer. In 1975, Weekend Magazine named him one of the top 10 criminal lawyers in the country, and a year later he was appointed to the Alberta District Court.

Judge McClung, known to his intimate friends in the province's legal circles by his nickname, "Buzz," was appointed to Alberta's highest court in 1980 and has delivered some of the most controversial rulings in Alberta's recent history.

In his 1996 ruling on Delwin Vriend, a homosexual fired from his college teaching job, Judge McClung rejected a lower Alberta court's redrafting of Alberta's human rights act to include gay rights.

Judge McClung denounced "constitutionally hyperactive judges pronouncing (on) all our emerging laws according to their own values" and railed against "crusading . . . ideologically determined judges" who used the country's Charter of Rights to rewrite legislation.

Ted Morton, a political science professor at the University of Calgary, said Judge McClung's championing of parliamentary supremacy and disdain for judicial activism has earned him the respect of many Canadian conservatives.

"The Vriend decision broke what I call the conspiracy of silence amongst his generation of jurists," Prof. Morton said.

"It was very courageous, but also probably risky. I don't think it's by accident that somebody who is at the end of their career did it."

Prof. Morton said Judge McClung, who is married without children, does have a tendency to use "inappropriate language" in his judgments, however.

"I think you could say he represents both the best and the worst of the British traditions in Canadian law," Prof. Morton said. "The best is his respect for the primacy of elected governments in making policy. The worst is that he obviously has stereotypical views of relations between the sexes."

Sheila Greckol, the Edmonton lawyer who represented Mr. Vriend, accuses Judge McClung of possessing "socially antiquated" views.

"It is abundantly clear that his 1950s perspective on social issues is affecting his legal analysis," Ms. Greckol said.

A staunch conservative who says he is paying close attention to the United Alternative proceedings, Judge McClung counts among his favourite possessions a framed tribute to his grandmother Nellie from the Manitoba Liberal Party. Mrs. McClung was a best-selling novelist, a leader in the Women's Christian Temperance Union, a renowned international speaker, and lifelong Liberal.

"She was always well-adjusted in the Liberal party," he once told a reporter.

Copyright Southam Inc.