March 12, 1999

In the court of public opinion

"We must be ever on guard, lest we erect our prejudices into principles."
Justice Brandeis, United Supreme Court Justice

Sometimes, we forget the law is a human venture. Quite often, the modern legal system is the proverbial `black box' - its workings shrouded by curtains, obscuring many of those vital mysterious processes inside. It grinds out decision after decision, affecting hundreds of lives on a daily basis. Most of the time we are forced to deduce the existence of these cogs and wheels via guesswork, logic and reason. But on those rare occasions, the curtains are tossed aside and the legal machine is laid naked for all to see. More often than not however, these occasions occur when a judge has made an error. But with the aftermath of R. v. Ewanchuk, it is not one judge but two.

In hindsight, Ewanchuk should have been a run-of-the-mill case for the Supreme Court of Canada to adjudicate. Steven Ewanchuk was charged with sexual assault for attempting to become intimate with a 17-year-old female job applicant and being told "no" twice. "Implied consent" was argued as a defence, winning at both of the lower courts. The Supreme Court was expected to overturn the decision of the Alberta Court of Appeal. And, as expected, it did so unanimously. Mme. J. L'Heureux-Dubé gave both the trial judge and Appeal Court Judge, J.A. McClung, a very strong rebuke, accusing them of furthering "archaic myths and stereotypes". But then something unexpected occurred.

McClung took exception to L'Heureux-Dubé's criticism and dispatched a letter of protest to the National Post. He accused her of "a graceless side to personal invective." But not content in stopping there, he added "the personal convictions of the judge.could provide a plausible explanation for the disparate (and growing) number of male suicides.in the province of Qu‚bec." This latter piece had an unanticipated extra bite: he was apparently unaware L'Heureux-Dubé's husband had committed suicide 21 years ago.S An impromptu 'off-the-record' interview was published in the same newspaper two days later. A letter of apology was released to the public by McClung but to little avail. Newspaper editorials across the country heaped criticism on the judge and women's groups wanted him to answer to a judicial inquiry. Curiously enough, in a span of 10 days, our tale took another bizarre turn. Noted lawyers Edward Greenspan and Allan Borovoy of the Canadian Civil Liberties Association, and Alan Gold of the Canadian Criminal Trial Lawyers Association have leapt to McClung's defence in the media. The interest group, REAL Women, have launched a formal complaint about the conduct of L'Heureux-Dubé.

There are two judges who now find their reputations tarnished. Were these judges wrong? And if so, where did they go wrong?

As per any other Canadian citizen, a judge possesses the freedom of expression, but there are boundaries placed on judicial speech. At the risk of oversimplification, these limits can be reduced to three grounds: 1) the need to ensure the integrity of the judiciary, 2) the need to maintain judicial independence, and 3) the requirement of impartiality, politeness and diligence in the performing of their duties, both in and out of court.

Upon reflection, it's clear both judges by their respective conduct have been in violation of one or more of these principles.

Integrity of the Judiciary
Whether one examines the letter or the off-the-cuff interview, it is evident McClung had impugned the dignity of L'Heureux-Dubé. Of this, there can be no doubt. Moreover, the subsequent comments made in the interview were also in violation of this principle. Likewise, I would argue L'Heureux-Dubé, by taking a very political stance, acted in a manner that could be construed as endangering the integrity of the judiciary. More particularly, to borrow from the Canadian Judicial Council's (CJC) handbook, and in review of her judgment, it does not appear there was any encouragement or support of an observance of this high moral standard to her respective colleagues of the lower courts.

Judicial Independence
The errors committed by both judges on this ground are surprisingly similar. Both judges seemed to think it was necessary to force the other judge into accepting their respective positions. In the CJC ethics guidelines, it says "judges must exercise their judicial functions independently and free of extraneous influence." As Edward Greenspan has argued (and there is some support for this view in R. v. Lipp‚), judicial independence must by necessity include a reasonable degree of freedom from the influence of other members of the judiciary. While there may be no doubt McClung's letter constituted a desire to break from the established hierarchy of the courts, there is some merit in asking whether L'Heureux-Dubé had gone too far in her criticisms of the lower judges.

Impartiality and Diligence
Socrates counseled judges to hear courteously, answer wisely, consider soberly and to decide impartially, as outlined in the CJC's "Ethical Principles for Judges". It appears neither of these judges passed the 'Socratic test.'

McClung, blessed with a wry and fiery wit, employed these talents poorly in his judgment in Ewanchuk. McClung's error lay in forgetting humor does have the ability to backfire-even for an appellate court judge.

Justice L'Heureux-Dubé's error lay on different grounds. Her decision has been alleged to be decided in a less than impartial manner. Undeniably, a review of her decision reflects the present state of the law, but the decision as written had very strong political overtones. It seems personal ideology had perhaps influenced her review of the lower court judges' decisions. But this is, at best, unclear. One letter of protest proclaiming hurt pride has shifted the spotlight from Mr. Ewanchuk and his victim to the presiding judges. The peaceful community of lawyers and academics were set to arms. And the legal world may never be the same.

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