Toronto Star

Tuesday, March 2, 1999

Judge `sorry' for outburst

REPENTANT: Alberta Appeal Court Judge John McClung.

Now man behind sex case demands 'right to be heard'

By Tonda MacCharles
Toronto Star Ottawa Bureau

OTTAWA - An Alberta judge apologized yesterday for lashing out at a female Supreme Court of Canada judge over her criticism of his ruling in a sexual assault case.

But Justice John McClung's apology was quickly ruled inadequate by women's groups and lawyers who filed formal complaints to a judicial watchdog body.

The ongoing controversy, meanwhile, has left the man at the centre of the case - convicted sex offender Steve Ewanchuk of Edmonton - distraught and fearful that judicial hyperbole has interfered with proper consideration of his case.

``It's absolutely unfair. I have a right to be heard'' at a new trial, said Ewanchuk, his voice cracking with emotion.

Ewanchuk is free, pending a sentence hearing that's not yet been scheduled.

In yesterday's one-page statement, McClung, of the Alberta Court of Appeal, said he was ``provoked'' into writing to a newspaper last Thursday after reading Justice Claire L'Heureux-Dubé's condemnation of his ruling in the controversial ``No means no'' sex assault case.

``I made an overwhelming error'' in whipping off a letter to the National Post, said McClung.

In the letter, McClung had called L'Heureux-Dubé's decision a ``graceless slide into personal invective,'' and linked her ``personal convictions'' to the rising rate of suicide among men in Quebec - remarks widely denounced by Canada's legal community.

McClung, the grandson of women's rights pioneer Nellie McClung, said yesterday he did not know the judge's husband committed suicide 20 years ago and the reference was only intended as a ``facetious chide'' to her.

``I immediately conveyed my explanation and apology to her later the same day. I sincerely regret what happened and have so advised her. It was a cruel coincidence to which she ought not to have been subjected.''

All nine judges of the country's top court reversed the Alberta courts' acquittal of Ewanchuk, but it was L'Heureux-Dubé's side ruling lambasting the decision McClung wrote in 1998 that prompted his outburst.

She said it was the result of biased assumptions and perpetuated ``archaic myths and stereotypes about the nature of sexual assaults'' and ignored the law.

L'Heureux-Dubé has refused to comment on McClung's remarks.

McClung said yesterday he also regretted telling a reporter the 17-year-old victim ``was not lost on her way home from the nunnery.'' He said he had not meant to rebut the Supreme Court's authority or to impugn the complainant, merely to give the reporter ``background to the issues in the case'' - background he thought was off the record.

``I don't think it represents an apology, frankly,'' said New Democrat Leader Alexa McDonough, who among others filed a formal complaint to the Canadian Judicial Council. ``It looks like he's actually saying I apologize but I really did this under provocation. That sounds like a very qualified apology to me.

``If he can't show more respect than that for women, if he can't show more respect than that for a Supreme Court decision, then I think he either has to step down or be removed.''

Two other groups - the National Association of Women and the Law, and the National Council of Women in Canada - have filed formal complaints to the Canadian Judicial Council demanding a review of McClung's conduct and fitness for the bench.

The Canadian Judicial Council is a watchdog body governing Canada's judges. It has the power to discipline judges for misconduct and recommend their removal from the bench.

`She started it. What came back to her, personally is something she started.'
- Steve Ewanchuk
Convicted sex offender

The justice minister can also order the council to conduct an inquiry, but in the McClung case, a spokesperson said, the minister is satisfied the council ``is already looking into the matter as a result of the complaints.''

``His remarks were unforgivable,'' said Hannah Service with the National Council of Women in Canada, who added she was glad McClung apologized, but said he already has revealed an unacceptable bias.

But Reform Leader Preston Manning said the Supreme Court of Canada's decision was sanction enough of McClung.

``I think his one comment was tasteless and ill-advised, but I think the general thrust of his remarks - I mean we're either going to encourage independent thinking by the judiciary or not. I don't think he should be censured for his over-all (remarks).''

Manning said L'Heureux-Dubé is like McClung in that she ``tends to take an independent position in the court and perhaps that's to be encouraged.''

Meanwhile, Ewanchuk - a four-time convicted sex offender now facing sentencing in what's become known as the ``bonnet and crinolines'' case - has hired a new lawyer.

Last week the Supreme Court convicted Ewanchuk on a charge of sexually assaulting a 17-year-old woman during a job interview in 1994. The case was returned to Alberta for sentencing.

He intends to ask the Supreme Court of Canada to order a new trial, saying his case was wrongly singled out because of McClung's comments.

The 49-year-old carpenter said both judges went too far.

Ewanchuk said McClung reacted because ``the frustration level of it was too much for him. This man is not ignorant when it comes to the law.''

``But the Supreme Court of Canada, Mrs. Dubé, she never should've said what she said about him being an archaic and ignorant man, because he's not,'' said Ewanchuk.

``She started it. What came back to her, personally is something she started. Not him. His comments may have been wrong. But the point is now everyone's on to those comments.

``It's frustrating for me. They're fighting among themselves and everyone's forgotten the legal aspect about how it affects me.''

Contents copyright © 1996-1999, The Toronto Star.