National Post

Friday, March 05, 1999



Eddie Greenspan chides the legal community for lining up with Justice Claire L'Heureux-Dube in the recent controversy surrounding Justice John McClung. While all nine judges of the Court reversed Justice McClung's judgment, Mr. Greenspan joins Justice McClung in singling out Justice L'Heureux-Dube.

Every day, higher courts review the judgments of lower courts. When the lower courts are wrong, the higher court's job is to tell them where they went wrong. Here, in moderate language, Judge L'Heureux-Dube cautions against the use of "plainly inappropriate" comments. In return, she was charged with having made "a graceless slide into personal invective."

Do her comments support Mr. Greenspan's assertions that Justice L'Heureux-Dube is a vicious bully, intimidating judges, creating a repressive and authoritarian world, and threatening judicial independence? Or, were her comments a reasonable commentary on judicial language that should be avoided by lower court judges?

Like Mr. Greenspan, I agree that we needn't call for removal of a judge every time an inappropriate comment is made. Like Mr. Greenspan, I have faith in the judiciary. I have faith that, when a lower court gets it so wrong, a higher court can correct the error. Justice L'Heureux-Dube was not engaged in a mean-spirited bullying tactic. She was simply doing her job. Justice McClung's comments were disturbing and it was right that a higher court call them inappropriate. Viciousness? Intemperance? Mean-spirited personal attacks? I see all of these, but not in the judgment of Justice L'Heureux-Dube. Justice McClung has since apologized for his intemperate comments. It remains to be seen whether or not Mr. Greenspan will do the same.

Rebecca Johnson, Assistant Professor, Faculty of Law, University of New Brunswick, Fredericton.

As a law student, a woman, and (gasp!) a feminist, I wish to respond to Edward Greenspan's column, Judges Have No Right to Be Bullies.

The only people who have been "mean-spirited" in this absurd fiasco have been Mr. Justice McClung and Mr. Greenspan. I for one support Mme. Justice L'Heureux-Dube for her eloquent and laudable decision: Like a pot of honey, she has drawn out all the flies.

Lisa Mathews, Law Student, University of Toronto.

Mr. Greenspan is absolutely correct that Madame Justice L'Heureux-Dube's remarks concerning Judge McClung were intemperate and revealed a lack of balance and judgment. Had her remarks been necessary or appropriate, one would expect to find similar sentiments in the judgment of Mr. Justice John Major, concurred with five other Supreme Court of Canada judges, including the Chief Justice. Yet, no such comments are to be found there.

Roger Langille, Q.C., Charlottetown.

Charter or MPs

I refer to your story in the National Post of March 1, dealing with the notwithstanding clause of the Charter of Rights and Freedoms (Ex-premiers Call For Use of Charter's 'Safety Valve'). The story accurately reflected my comments except in one particular. Referring to the recent child pornography case in British Columbia, I have not studied this judgment and so have not formed an opinion on whether the notwithstanding clause should be used in this case. I do agree that if the clause is used, it should not be used until all court proceedings are over.

Allan Blakeney, College of Law, University of Saskatchewan, Saskatoon.

While ex-premiers Peter Lougheed and Allan Blakeney are correct to be concerned about judges getting too much power because of the Charter or Rights and Freedoms, their concerns are directed to the wrong place.

If our elected politicians did their jobs properly and truly represented us using their intelligence and seeing issues to their logical conclusion, political power would be put back in the hands of politicians. It is because our elected politicians do not do their jobs, the courts must fill the vacuum.

Bernie Koenig, London, Ont.

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