National Post

Tuesday, March 02, 1999

Judges have no right to be bullies

Edward L. Greenspan
National Post

'He said! She said!" has a new meaning in Canadian law. It now refers to the knock 'em down, drag 'em out, gloves are off verbal boxing match between Madame Justice Clair L'Heureux- Dube of the Supreme Court of Canada and Judge John McClung (yes, Nellie's grandson) of the Alberta Court of Appeal. It is not a fair fight. The Supreme Court of Canada is the super heavyweight division and the Alberta Court of Appeal is the middleweight division. It is not a fair fight because the judges of the Supreme Court of Canada are nine of the most powerful people in the country. They have the power to overrule every other Canadian judge, no matter how brilliant their judgments are, no matter how right they are, no matter how wrong they are or, for that matter, how stupid they are. They have the ability and the proximity to persuade their brother and sister judges of the Supreme Court of Canada to agree with them. They share the same offices and they live together. They are each other's comrades.

The Supreme Court of Canada is the most powerful court in the land, the ultimate court, the final word on the law, and as has been said, the last court that has the right to be wrong. But nobody gives it the right or the privilege to publicly humiliate, heap scorn, ridicule or cause enormous pain to another lower court judge for what that judge may have said in his or her judgment.

When the Supreme Court judges swore their oath, they were not given the right to be bullies. They were not given the right to pull a lower court judge's pants down in public and paddle him. The job description does not permit them to say mean, gratuitous, and terrible things about lower court judges that will be recorded forever in Canadian legal history.

By labelling Judge McClung, in effect, the male chauvinist pig of the century, the chief yahoo from Alberta, the stupid, ignorant, ultimate sexist male jerk, Judge L'Heureux-Dube did an unnecessary and mean-spirited thing. It was undignified and very wrong. I am not surprised that Judge McClung reacted angrily by writing a letter and giving an interview to the National Post.

His comments were undoubtedly painful to Judge L'Heureux-Dube, but we must accept his explanation that he had something else in mind when he uttered his most hurtful words. Irrespective of his explanation, his comments were not particularly smart, or well-conceived. It was obviously the letter of a very angry person. But make no mistake about this, Judge L'Heureux-Dube drew first blood and whatever he said will not be recorded in Canadian judicial history like her vicious comments about him will. She tagged him with a label that she has no right to tag him with. She was intemperate, showed a lack of balance, and a terrible lack of judgment. And so, too, was Judge Charles Gonthier, who signed on to her judgment. His approval is, therefore, equally culpable.

I am fundamentally opposed to reporting any judge to the Canadian Judicial Council for what they say. I have great faith in the independence of the judiciary. Litigants and witnesses often suffer from judges' remarks. Judges may make gratuitous, insulting comments. Ordinary citizens are often hurt by the judgments of the court. Here, we have a judge as a victim of their verbal attack. I think it is more appropriate for judges to be temperate or to avoid comment of a personal nature, as six judges did in this case. I would live by a rule that when a judge overrules, it is wrong to also pour salt in the wound or step on the lower court judge's face.

The profound reaction of the legal community, lining up on Judge L'Heureux-Dube's side and ignoring the fact that her hurtful and thoroughly unnecessary words started the battle, is a striking example of how politics has taken over the issues surrounding sexual assault. It is clear that the feminist influence has amounted to intimidation, posing a potential danger to the independence of the judiciary. I deplore any attempt to use the Canadian Judicial Council as an agent of the women's movement, through the filing of complaints against judges whose remarks do not accord with the feminist world view. Feminists have entrenched their ideology in the Supreme Court of Canada and have put all contrary views beyond the pale. I predicted a long time ago a judicial embracing of the feminist perspective. But to call for Judge McClung's removal or censure means the feminists and their fellow travellers have created such a repressive and authoritarian world that certain words are not only unacceptable, but now constitute misconduct. The feminist perspective has hijacked the Supreme Court of Canada and now feminists want to throw off the bench anyone who disagrees with them. That no one in academia or legal circles has stood up for Judge McClung to date is shocking.

Judge L'Heureux-Dube was hell-bent on re-educating Judge McClung, bullying and coercing him into looking at everything from her point of view. She raked him over the coals for making remarks that may, in fact, be accurate in the given case. I don't know. But just as he had no empirical evidence to support his view (if you discount all of human history), she has no empirical evidence to say what she says (if you discount Catharine MacKinnon's collected works). Calling for his censure or removal from the bench is nothing but an attempt to intimidate the judiciary.

A former president of Yale University once said, "There occurs at times, a tyranny of group self righteousness, manifesting itself in a rage to ideological or dogmatic purity." Madame Justice L'Heureux-Dube has shown an astounding insensitivity and an inability to conceive of any concepts outside her own terms of reference and has thereby disgraced the Supreme Court. Judge McClung may not have done anything to remove the stain. In fact, his words may have added to the stain. But don't talk of removing him from office. Don't talk of censure. Likewise, don't censure her and don't remove her. Let the record show that she is not a very nice person and let the public debate ask the only question that matters: Does the Supreme Court of Canada care so little about its own reputation that it could not persuade Judge L'Heureux-Dube to rewrite her judgment before she issued it, so as not to disgrace the court?

Edward L. Greenspan is senior partner at Greenspan, Henein and White Barristers.

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