National Post

Tuesday, March 02, 1999

Judge apologizes for 'cruel' attack on senior justice
'An overwhelming error': Women's groups still want McClung removed from bench

Shawn Ohler
National Post

The Edmonton Journal / Justice John McClung of the Alberta Appeals Court issued an apology yesterday. At issue is Judge McClung's 1998 decision to uphold the acquittal of an Edmonton man charged with sexually assaulting a 17-year-old woman. His ruling was overturned by the Supreme Court.

A senior Alberta judge apologized yesterday for publicly censuring Supreme Court Justice Claire L'Heureux-Dube, but it was not enough to staunch mounting calls that he be removed from the bench.

Alberta Court of Appeal Justice John McClung has twice disparaged the Supreme Court judge in the National Post, once by sending a letter to the editor in which he linked her personal convictions with Quebec's growing male suicide rate. In a news release, Judge McClung said he considers sending his now-infamous missive "an overwhelming error."

He continued: "I wish to acknowledge that there was no justification for my doing so. I regret my reaction and appreciate that no circumstances could justify the media as the avenue for the expression of my disappointment."

Judge McClung has told the National Post that he meant to chide Judge L'Heureux-Dube "because of her consistent anti-male response" in her judgments, including the recent "no means no" sexual assault case.

Last week, Judge L'Heureux-Dube and her eight Supreme Court colleagues quashed two Alberta court rulings that a 17-year-old woman had implied consent to the sexual advances of Steve Ewanchuk of Edmonton. In its decision, the Supreme Court convicted Ewanchuk, and Judge L'Heureux-Dube took the unusual step of criticizing Judge McClung's Appeal Court ruling in a separate opinion.

Judge McClung's unprecedented letter prompted national outrage, especially once it emerged that Judge L'Heureux-Dube's husband killed himself in 1978.

In yesterday's news release, he reaffirmed he was unaware of that when he wrote the letter, and immediately apologized to Judge L'Heureux-Dube upon finding out.

"I sincerely regret what happened and have so advised her. It was a cruel coincidence to which she ought not to have been subjected," he said.

"But it was a coincidence for which I am answerable."

His apology was derided by national women's groups, several of which filed formal complaints with the Canadian Judicial Council, a legal watchdog that has the power to recommend to Parliament that judges be fired.

"We don't believe for a moment that the brief letter of apology repairs any of the damage that Judge McClung has done," said Bonnie Diamond, executive director of the National Association of Women and the Law, one organization that complained to the council.

"We have called the council to look at whether or not he has become incapacitated or disabled from the due execution of the office of a judge. In our opinion he is unfit to sit on the bench."

Other complaints came from the National Council of Women of Canada, the Metropolitan Action Committee on Public Violence Against Women and Children, and Alexa McDonough, the federal NDP leader.

Ms. McDonough said Judge McClung, who wrote in his original judgment that Ewanchuk's victim had not presented herself to him "in a bonnet or crinolines," was sexist in the first place.

"And it was absolutely reprehensible to write a letter to the editor and say the kinds of things he said about Supreme Court judges," she said.

The Canadian Judicial Council will consider the complaints and make public the results of its review.

Peter Russell, an expert on the Canadian judiciary and a former professor at the University of Toronto, said Judge McClung's show of contrition will surely affect any decision the council makes.

"Even if they go ahead with an inquiry, I think the apology would be a mitigating circumstance that would reduce any sanction the council might think of, just as it does in judging criminal conduct," he said.

"A remorseful, sincere apology is something that influences judges and ought to be a factor here."

Prof. Russell noted that while Judge McClung's letter to the National Post was unprecedented, apologies from high-level judges are not.

Last year, for example, newly appointed Supreme Court Justice Ian Binnie apologized after referring to a law-school fraternity dinner as a "faggoty dress-up party." He was not condemned by the judicial council.

"I hope Judge McClung's apology is the end of this latest affair," Prof. Russell said.

"It was a very sad chapter in our judicial history and I'm sure he would tend to agree with that."

In his apology, Judge McClung also asserted that he was "provoked" into writing his letter to the National Post, and that revealing comments he made to a National Post reporter about Judge L'Heureux-Dube and Ewanchuk's victim were meant to be "off the record." In that interview, he defended his ruling in the Ewanchuk case, stating his victim "was not lost on her way home from the nunnery."

Kenneth Whyte, the National Post's editor-in-chief, said the newspaper received the letter Thursday after one of its reporters phoned Judge McClung for a response to the Supreme Court decision.

"Justice McClung said he would comment by sending us a letter to the editor, which we agreed to publish. Shawn Ohler also asked him some general questions about his thoughts on judicial activism. Justice McClung responded, on the record, and Mr. Ohler included those comments in Friday's story," Mr. Whyte said.

"On Friday morning, Justice McClung left a voice-mail message with Mr. Ohler thanking him for the balanced coverage the National Post gave the story. Mr. Ohler called him back and questioned him about the letter and the Supreme Court judgment. Those comments were included in our Saturday coverage. At no time did Mr. Ohler or Justice McClung indicate that the interview was off the record."

In yesterday's news release, Judge McClung said it was his "mistake" that he did not tell the reporter the interview was meant to be off the record.

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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