Toronto Star

Friday, April 2, 1999

Judge's sex-case remarks `robust' but not biased, watchdog rules

REAL Women complaint against L'Heureux-Dubé is rejected

By Nahlah Ayed
Canadian Press

OTTAWA - The judiciary's watchdog says it found no evidence to support a complaint that a Supreme Court judge was biased and driven by feminist leanings in a ruling on the No-means-no case.

The Canadian Judicial Council announced late yesterday there was no judicial misconduct in Justice Claire L'Heureux-Dubé's comments in the ruling on an Alberta sex-assault case.

The complaint, filed with the council by REAL Women of Canada in early March, said L'Heureux-Dubé should be fired for comments she made in the February ruling that reaffirmed that No uttered during sexual activity should mean No.

L'Heureux-Dubé wrote separate comments in the ruling rebuking Alberta Court of Appeal Judge John McClung for inappropriate comments he made when he rendered his judgment on the case.

But the council said in a letter to REAL Women the language L'Heureux-Dubé used was appropriate.

It was ``certainly robust but well within the ambit of the case and therefore not outside the realm of appropriate judicial conduct,'' said the letter.

L'Heureux-Dubé was ``entitled in the discharge of her judicial responsibility to say what she thought should be said within the context of the case.''

McClung ruled in the sexual-assault case a 17-year-old woman had implied consent even though she said No three times while a man tried to engage her in sexual activity during a job interview.

But in his ruling, he outraged women's groups by describing the defendant's actions as ``clumsy passes'' and ``far less criminal than hormonal.'' He also said the girl, who was wearing a T-shirt and shorts at the time of the incident, ``did not present herself . . . in a bonnet and crinolines.''

L'Heureux-Dubé strongly criticized the comments by McClung, which she said perpetuated stereotypical myths about victims of sexual assault.

She called the comments ``plainly inappropriate in that context as they minimize the importance of the accused's conduct and the reality of sexual aggression against women.''

The Supreme Court overturned the defendant's acquittal and entered a conviction, a rare move.

The council also dismissed claims by REAL Women that L'Heureux-Dubé was unable to carry out her duties impartially because she identified herself ``solely with the legal perspective of feminists.''

Its reply, written on behalf of Justice Allan McEachern, chairman of the judicial conduct committee, says he cannot find that she had failed to interpret the law impartially ``since in this case all the judges of the Supreme Court of Canada were agreed in the result.''

After the high court ruling in February, McClung wrote a letter to a newspaper accusing L'Heureux-Dubé of sliding into ``personal invective'' in her comments in the ruling. He was widely criticized for making the comments in public.

Though he later apologized for the letter, McClung himself became the subject of a number of complaints to the judicial council for breaking the code of public silence among the judiciary. The complaints have yet to be resolved.

L'Heureux-Dubé has not commented on the matter in public.

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