Toronto Star

Tuesday, March 2, 1999

Judge McClung should step down

Judicial independence is a cornerstone of our legal system. Without the freedom to apply the law impartially - regardless of the political consequences - judges would be mere pawns of the state.

In return for this latitude, we expect judges to be rigorously fair-minded and responsible.

Judge John McClung of the Alberta Court of Appeal has violated that trust.

Neither apologies nor explanations will repair the damage he has done. If he truly cares about the integrity of Canada's legal system, he will resign.

Last week, McClung used his privileged position to launch an ugly, personal attack on Madam Justice Claire L'Heureux-Dubé of the Supreme Court of Canada. Hours after the Supreme Court overturned his ruling in a controversial sexual assault case, McClung accused L'Heureux-Dubé, who had written part of the judgment, of a ``graceless slide into personal invective.'' Then, in an astonishing leap of logic, he attributed Quebec's high male suicide rate to her publicly expressed convictions.

Yesterday, he issued a six-paragraph apology, acknowledging that he made ``an overwhelming error'' and expressing his regret for any distress he had caused L'Heureux-Dubé.

He claimed he had been unaware, when he made the comments, that L'Heureux-Dubé's husband had committed suicide. He called his reference to the province's suicide rate ``a cruel coincidence.''

The 63-year-old Edmonton judge was right to apologize.

But no mea culpa will convince Canadians - women in particular - that they can expect a fair hearing from Alberta's highest court. And no profession of ignorance about L'Heureux-Dubé's family history can explain his crude, vindictive remarks.

Appalling as McClung's behaviour was, The Star cannot endorse calls for his forcible removal from the bench. He certainly deserves to be censured by the Canadian Judicial Council. His judgments should certainly be appealed, if there is any doubt about his impartiality. But firing him would violate the principle that judges must be allowed to speak out with no fear of recrimination.

McClung has 12 years left on the bench. He could do the courts and the country a great service by stepping down now.

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