National Post

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Friday, March 19, 1999

High court's gender balance leads the nation
Alberta court of appeal: Some observers say the split has led to a pronounced schism

Shawn Ohler
National Post

Barely a decade ago, the Alberta Court of Appeal was as much of an old boys' network as any male-dominated appellate court in the country. But no more.

Of the Alberta high court's 12 full-time justices, seven are women. When the court's four supernumerary, or part-time, judges are factored in, the male-female split is 50%, by far the highest in the country.

British Columbia's Court of Appeal is next, with seven female judges of 20. Appellate courts in every other jurisdiction in Canada lag far behind. Appeal courts in Ontario and Quebec, for example, both have five female judges on a 22-strong bench. The smaller Newfoundland, New Brunswick and Manitoba appeal courts each have one female judge.

The unusual gender balance in Alberta has had two consequences, legal observers say. One is a long-overdue shift away from the exclusively male judiciaries of years past.

The other is more sinister. Academics and lawyers say the split has also led to a pronounced schism on the court, particularly between Chief Justice Catherine Fraser, Canada's first female appeal court chief justice, and the court's second-most senior member, Justice John McClung, whose now infamous letter about Supreme Court Justice Claire L'Heureux-Dube in the National Post led to repeated and vociferous calls for his judicial head.

"Justice McClung and Justice Fraser certainly seem to be in disagreement about fundamental social values," said Chris Levy, a University of Calgary law professor.

"That doesn't mean it has to translate into a personal disagreement. However, in this case, it does rather look as if it has. Everyone you talk to senses it."

Judge McClung, a veteran jurist and staunch conservative whose rulings in the Steve Ewanchuk sex-assault case and Delwin Vriend's homosexual-rights case enraged countless interest groups, has the "social values of a traditional old gentleman," Prof. Levy said. That stance often bristles against the proudly feminist bent of Judge Fraser, who has sat on the court since 1992, 12 years fewer than Judge McClung.

"Justice Fraser has an extremely strong personality and I think it's fair to say that she has less of a conciliatory personality than her predecessor, Justice James Laycraft," Prof. Levy said.

"She's very charming personally, I might add, but one gets the feeling that she's aggressive, nervy. Those are two words I have heard used. She is perhaps not the right person to bring a disparate group of people together. McClung is somewhat isolated from the court and it is not by any means clear that it is a matter of his choice."

Alberta lawyers, loath to comment on the record for fear of offending any members of the high court, privately tell the tale of Judge McClung's third-floor office in Edmonton's law courts building. The other members of the Court of Appeal, including Judge Fraser, are on the fifth floor, breeding gleeful speculation that Judge McClung was forced to move because the rift is so severe.

Judge McClung has said he is on the third floor because he needs extra space to house a collection of archival legal documents and photographs.

"I'm the crazy old aunt they keep in the basement," he joked to Alberta Report magazine in 1996.

Peter McCormick, a political science professor at the University of Lethbridge who has studied appeal court decisions for 20 years, said the court's apparent dysfunction is as much due to a relatively high recent turnover as the gender split.

"It's a changing of the guard. There have been a number of retirements and a number of judges going supernumerary, and consequently you have quite a different court than you used to," Prof. McCormick said.

"Whenever you have that, you have a chunk of the old guard sitting off to the side saying that everything's going to hell in a handbasket. I think Judge McClung is just venting all of this before he retires. He has been wanting to say these things for a while and things are getting worse, not better, so, by golly, he said them."

Prof. McCormick insists that the Alberta court is still one of the country's best, when the hard data of Supreme Court reversals and citation patterns are crunched.

"Until some time after World War Two, the Alberta Court of Appeal was probably the number two or number three court in the country. It has surrendered its position to British Columbia over the years, though it is by no means slouchy," he said.

Prof. McCormick said he hopes the Alberta court's recent problems will not affect its reputation, though he worries they already have.

"It plays right into Alberta's redneck image. And that's a pity."

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