Ottawa Citizen

Wednesday 3 March 1999

Judging the judges

The Ottawa Citizen

In writing a public letter attacking Supreme Court Justice Claire L'Heureux-Dube, Alberta Court of Appeal Judge John McClung gracelessly slid into personal invective, the very accusation he levelled at Judge L'Heureux-Dube. That much is surely not in dispute, not even by Judge McClung, who has since apologized. But there are a few matters still to be discussed before we let Alexa McDonough and a posse of extreme feminist legal scholars take Judge McClung out to the ol' hangin' tree.

The arguments for firing Judge McClung, or at least forcing him to resign, seem to split into two charges: that he has shown himself to be so biased that no woman can expect him to apply the law impartially, and that his behaviour was so unprofessional as to warrant removal. The first charge is the more serious, but what evidence is there that Judge McClung's work is biased? In the Ewanchuk case, he was only one of several judges to make an error of law which was subsequently corrected by the Supreme Court. And there's no reason to think that he will not apply the Supreme Court's reasoning as he is required to do. Quite the opposite: In his apology, he emphasized that he understood the importance of court hierarchy to the functioning of justice, and that he respected the finality of the Supreme Court's decision. Unless and until Judge McClung shows bias in his decision-making, this charge is empty.

As for the accusation that the judge's conduct was unprofessional, no one disputes that. Judge McClung's apology was unequivocal, declaring he had made an "overwhelming error." His self-criticisms were unsparing, and he emphasized his personal responsibility. If only politicians would apologize with such clarity.

Judge McClung's handling of his most bizarre comment, that Judge L'Heureux-Dube's reasoning contributed to the suicide rate in Quebec, is noteworthy. He said that he had not known that Judge L'Heureux-Dube's husband had committed suicide, and that he regretted the pain his comment caused, but what he did not mention is more revealing: That his own father committed suicide. He could have cloaked himself in the mantle of the victim, but did not.

Judge McClung's misbehaviour also has to be put in the perspective of a judiciary where stupid statements are far from novel. Usually, judges suffer only public embarrassment. Rarely, there is censure. As for removal, not much short of committing murder will get a judge fired. In fact, an appellate court judge has never once been removed in our nation's history. That is as it should be in a justice system that relies on an independent judiciary.

Despite all this, there's something to be said for a public official removing the stain of error with a quick resignation. And were it not for another matter, we might support that. But then there is the issue of Judge L'Heureux-Dube.

This controversy was sparked by a separate though concurring opinion in the Ewanchuk case written by Judge L'Heureux-Dube. No other judge besides Justice Charles Gonthier signed it, which is not surprising since it takes unprecedented, mean-spirited, gratuitous shots at Judge McClung's earlier ruling. It doesn't just overturn his decision, it attacks him personally. Judge L'Heureux-Dube's words were so appalling that renowned lawyer Edward Greenspan took the courageous step of attacking her in the National Post, saying she had disgraced the Supreme Court.

But she did much more than that: She showed how far her desire to entrench extreme feminist ideology in law now guides her reasoning. Her decision reads less like a Supreme Court judgement on a specific case than a manifesto on feminist legal theory. Among the many feminist treatises cited by Judge L'Heureux-Dube as authorities is Toward a Feminist Theory of the State, by Catherine MacKinnon, an American law professor and the very paragon of fringe, illiberal feminist legal theory. (It was Ms. MacKinnon who proposed legislation that would render a woman's consent to participate in pornography legally void -- reducing women, in effect, to the legal status of children.)

As Mr. Greenspan wrote, Judge L'Heureux-Dube "was hell-bent on re-educating Judge McClung." The feminist groups now lining up to see Judge McClung hanged want to go one step further: They want to remove any judge who does not accept their world-view.

This is why Judge McClung not only should not be fired, but should not resign. A resignation might validate the idea that all judges must not only apply settled law, but share the prevailing ideology. That's dangerous and unacceptable. Judge McClung must remain contrite for his foolishness, but, in the name of judicial independence, he must also stay put.

Copyright 1999 Ottawa Citizen