National Post

Monday, March 01, 1999

McClung suffering from 'wounded vanity': judge
'He owes an apology'

Shawn Ohler
National Post

Thomas Berger resigned from the B.C. Supreme Court in 1983.

A senior Alberta judge should show public contrition for his verbal lashing of Supreme Court Justice Claire L'Heureux-Dube, a former top British Columbia jurist said yesterday.

"I think he owes both an explanation and an apology," Thomas Berger, a one-time B.C. Supreme Court justice, said of John McClung, the Alberta Court of Appeal judge who has twice censured Judge L'Heureux-Dube in the National Post.

In a letter to the editor, Judge McClung linked Quebec's growing male suicide rate with Judge L'Heureux-Dube's opinion in last week's landmark "no means no" sexual assault case. In a follow-up interview, the Alberta judge criticized her ruling again and added that the victim in the case "was not lost on her way home from the nunnery."

Sitting members of Canada's judiciary have been loathe to comment on Judge McClung's attacks. Several contacted yesterday refused to discuss them. But Mr. Berger, who resigned from B.C.'s highest court in 1983 and is now a lawyer with a Vancouver practice, said Judge McClung's suicide reference is especially troubling.

Judge L'Heureux-Dube's husband killed himself in 1978, which Judge McClung insisted he did not know.

"Granted, Judge McClung didn't intend to refer to the suicide of her husband," Mr. Berger said.

"But the question remains, how could anyone make a connection between her judgments and the male suicide rate in Quebec? That is incomprehensible to the point of absurdity."

Mr. Berger said Judge McClung was likely suffering from "wounded vanity" and was "clouded by resentment" when he took the unprecedented step of publicly belittling Judge L'Heureux-Dube's opinion.

In the case, the Supreme Court unanimously quashed two rulings in the Alberta courts that a 17-year-old woman had implied consent to the sexual advances of Edmonton man Steve Ewanchuk. The court convicted Ewanchuk, and Judge L'Heureux-Dube took the unusual step of criticizing Judge McClung's Appeal Court ruling in a separate opinion.

"If every judge who was reversed wrote a letter criticizing the court that reversed him, the National Post would be flooded with mail," Mr. Berger said.

"Writing this letter was altogether inappropriate. It is too bad that the judge didn't show it to one or two of his colleagues before he sent it off. I'm sure his colleagues would have said, 'Oh, for God's sake, don't be an idiot.' "

Mr. Berger is himself familiar with drawing fire for speaking in a public forum. In November, 1982, while still on the B.C. Supreme Court, he broke with judicial tradition and blasted "mean-spirited" federal and provincial politicians for dropping aboriginal rights from constitutional talks.

A Federal Court judge lodged a formal complaint with the Canadian Judicial Council, saying Mr. Berger's comments would cause greater harm to the administration of justice than "sleeping with a prostitute or driving whilst impaired." The council found that while Mr. Berger was "indiscreet," there was no basis for removing him from the bench. A year later, after Supreme Court Chief Justice Bora Laskin continued to criticize his conduct, Mr. Berger resigned.

Mr. Berger said Judge McClung will assuredly face a date with the council, though he refused to predict the controversial jurist's fate.

"Everyone is angry about this intemperate letter. But I think we should all step back and let things cool down and then deal with it," he said.

Related Sites

R. v. Ewanchuk
The Supreme Court decision handed down in the "no means no" sexual assault case.

Jurist Canada
The leading judicial website.

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