National Post

Monday, March 08, 1999

L'Heureux-Dube was right: senior U.S. judge
McClung's ruling 'cruel': Calif. conservative says 'feminist' judge just doing her job

Jonathon Gatehouse and Charlie Gillis
National Post

Supreme Court Justice Claire L'Heureux-Dube was right to break with convention and single out a top Alberta judge for harsh criticism over his "cruel and offensive" statements in a sexual-assault ruling, says a prominent American jurist.

Alex Kozinski, a well-known and controversial federal court of appeals judge in California, has leapt to the embattled Supreme Court judge's defence after reading about her war of words with Alberta Court of Appeal Justice John McClung. He heard about it on a judges-only Internet discussion group.

In an opinion-piece published in today's National Post, he defends Judge L'Heureux-Dube, commending her for doing her duty and refuting the "invidious stereotypes" invoked in the appeal court decision acquitting Steve Ewanchuk.

Judge McClung overturned a guilty verdict against the Edmonton man on the grounds that his 17-year-old victim was sexually worldly, and had sent conflicting signals.

"If a lower court judge were to say that 'The complaining witness [a Jew] deserved to be robbed because everyone knows Jews are greedy and cheat their customers,' the Supreme Court would surely be obligated to point out that this reflects invidious stereotypes, not reality," writes Judge Kozinski, who is ranked among the top contenders for a future nomination to the U.S. Supreme Court.

"Why then was it wrong for Justice L'Heureux-Dube to point out that, by dressing in shorts and being a single mother, the complainant was not angling for sex during a job interview?"

The American judge, a conservative who was appointed to the bench by Ronald Reagan, also takes on those who have criticized the Supreme Court decision as being the product of an out of control feminist.

His commentary, inspired by Edward Greenspan's March 2 defence of Judge McClung in the National Post, takes the criminal lawyer and other critics of the decision to task for distorting Judge L'Heureux-Dube's position.

"What is truly remarkable about Mr. Greenspan's diatribe, verdant with hyperbole and bristling with insult, is that it says not a thing about Justice L'Heureux-Dube's judgment . . . other than to attribute to its author a mindless feminist ideology," writes Judge Kozinski. "[It] is, in fact, neither particularly strident nor particularly ideological. Rather, it reflects common sense, shared, I am confident, by most Canadians."

In an interview from his Pasadena offices Friday, Judge Kozinski said he felt compelled to wade into the debate to help correct the public misconception that Judge L'Heureux-Dube had somehow attacked or disparaged her Alberta counterpart in her decision.

"I don't think she made it personal," he said. "There's a big difference on calling you on what you say and calling you names."

The judge said he was initially concerned about being accused of interfering in another country's legal affairs, but decided an outside opinion might lend the debate some perspective.

Mr. Greenspan was unfazed by the criticism, promising to produce an in-depth and thorough response to Judge Kozinski's op-ed piece.

"The first two pages of Justice L'Heureux-Dube's judgment quote selected portions of the United Nations Convention on Gender Equality," he said in an interview yesterday. "If this isn't political and purely ideological, I'd like to know what is.

"If the good judge thinks what I wrote was a diatribe, wait until he sees my response."

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.

R.E.A.L Women Canada
Another entrant into the fray.

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