Toronto Star

February 27, 1999

Public attack on judge sparks calls for censure

NASTY WORDS: Supreme Court's Claire L'Heureux-Dubé stung by John McClung of Alberta appeal court.

`Vicious' letter by Alberta justice causes outcry

By Tonda MacCharles
Toronto Star Ottawa Bureau

OTTAWA - An Alberta judge stunned the Canadian legal community yesterday with an unprecedented public attack on a female Supreme Court of Canada judge - one of nine judges who overturned his acquittal of a sex offender.

Justice John McClung, of the Court of Appeal of Alberta, blasted Madam Justice Claire L'Heureux-Dubé in a two-paragraph letter to a newspaper within hours of the top court's ruling - prompting calls for the Canadian Judicial Council to censure him.

``I will take to our board a recommendation that we initiate a complaint and invite other women's groups to join us,'' said Marilou McPhedran, a leading feminist lawyer who chairs Toronto's Metropolitan Action Committee on Violence against Women and Children.

``For McClung to take this as a personal attack and then to respond in such a personal fashion, it's pathetic, on both a personal and a professional level,'' she said.

``He has an individual right to his hurt feelings and desire for revenge but he does not have the right as a judge to respond in this manner.''

McClung called L'Heureux-Dubé's critique of his earlier decision to acquit Steve Brian Ewanchuk of sexually assaulting a 17-year-old a ``graceless slide into personal invective.''

Most baffling to those who read it was McClung's suggestion that L'Heureux-Dubé's ``personal convictions . . . could provide a plausible explanation for the disparate (and growing) number of male suicides in the Province of Quebec.''

In the last two weeks, newspapers have reported the rising rate of suicide among men in the province of Quebec.

The letter, published in the National Post, shocked both judges and lawyers across the country - especially since it is well-known in legal circles that L'Heureux-Dubé's husband committed suicide in Quebec nearly 20 years ago. She also lost a son years later to an unidentified virus.

A friend of McClung said the judge didn't realize L'Heureux-Dubé's husband had committed suicide and he regrets that part of his statement, but stands by the rest, CTV News reported yesterday.

McClung's original acquittal of Ewanchuk drew national attention because the judge remarked the girl didn't ``present herself in a bonnet and crinolines.''

He also called Ewanchuk's actions ``clumsy passes'' that were more ``hormonal than criminal.''

McClung said that by not communicating her fear, the girl implied consent to his sexual advances.

Thursday's reversal of Ewanchuk's acquittal was unanimous.

The court said unequivocally there is no such thing as implied consent as a defence to sexual assault in Canadian law.

But McClung targeted none of the other eight judges. In fact, Justice John Major, formerly of the Alberta appeal court, wrote the main judgment although he doesn't often pen decisions.

L'Heureux-Dubé, along with one male colleague, Justice Charles Gonthier, went a step further and issued concurring reasons slamming point by point the decision that McClung wrote in 1998. It had been a 2-1 ruling by the Alberta appeal court, with Chief Justice Catherine Fraser dissenting.

L'Heureux-Dubé's reasons expressed moral outrage at the stereotypes she said ran through the McClung decision.

``Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions,'' she wrote.

She also stated it was the role of the Supreme Court to denounce the kind of language used in McClung's judgment, ``which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law.''

``The worst thing you can call a judge is biased, because it's the opposite of impartial, which is what they're supposed to be,'' said political scientist Carl Baar, who co-authored a book on Canadian appellate courts.

But Baar said L'Heureux-Dubé was temperate in her remarks, while McClung clearly went too far.

``The tone and content of the letter are totally inappropriate and I do not believe a judge would have made these comments or used this kind of language about a male colleague on the Supreme Court of Canada. Let's say it like it is.''

Baar said lower courts' decisions are frequently overturned, and the appropriate forum for debate amongst judges about their judgments is in educational forums and conferences.

McClung, the grandson of suffragist and legislator Nellie McClung, refused to respond to calls from The Star on Thursday and yesterday.

L'Heureux-Dubé and all her colleagues on the Supreme Court also refused requests for interviews yesterday, but it was clear the McClung letter sent a shock wave through the wood-panelled halls of the high court.

``It's outside the bounds of what I feel is appropriate'' to comment on, said Justice Beverly McLachlin.

McLachlin, the only other female judge in the Supreme Court, also wrote a separate, concurring reason that stereotypical assumptions ``lie at the heart of what went wrong in this case.''

`All I can read it as is a vicious personal attack that's unwarranted, unprecedented, shocking and that brings the system of justice into disrepute.'
- Kathleen Mahoney
University of Calgary law professor

``All I can read it as is a vicious personal attack that's unwarranted, unprecedented, shocking and that brings the system of justice into disrepute,'' said University of Calgary law professor Kathleen Mahoney, a personal friend of L'Heureux-Dubé and an often outspoken critic of Supreme Court judgments.

``Even you and I have to be temperate in our remarks,'' she said. ``We can't, without putting ourselves at risk of a contempt of court finding, we cannot personally attack a judge.''

Comment on the substance of rulings is fair game, she said. ``But this notion of suggesting a judge is abusing her role at the Supreme Court of Canada to voice some personal political agenda is beyond that kind of commentary.''

The Canadian Judicial Council is a professional body that is also responsible for disciplining federally appointed judges.

Some suggested the council might have been a better forum in which McClung could have sought redress.

The letter ``is an inappropriate way of dealing with a complaint he may have had with a judgment, and perhaps a complaint to the appropriate governing body would have been a better way to deal with his criticisms,'' said Heather Perkins-McVey, a spokesperson for the criminal justice section of the Canadian Bar Association.

The federal New Democratic Party is also actively considering filing a complaint to the judicial council about McClung, said a party spokesperson.

But NDP MP Chris Axworthy, a former law professor, said that while the letter does go too far, it would be excessive to demand that the judicial council discipline McClung.

``The letter is more an indictment of Mr. Justice McClung than anything else.''

A spokesperson for the Canadian Judicial Council declined comment on the McClung letter yesterday, except to say she was ``flabbergasted'' to see it.

The council's judicial conduct committee does not make complaints public, and generally only makes the response public if a complainant has widely publicized the complaint.

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