z024

Later developments. 13mar99

Extract from Canadian Senator Anne C. Cools, below;

Honourable senators, I move now to judge-bashing, that subject raised so

publicly by Chief Justice Lamer last summer, in particular,

judge-bashing of judges by judges and particularly of traditionalist

judges by activist judges. Mr. Justice McClung was very insulted by

Madame Justice L'Heureux-Dubé's negative statements about him in her

reasons for judgment. He felt denigrated intellectually and

professionally. He felt judge-bashed. He responded impetuously. In his

letter, he unfortunately mused about the men driven to suicide by

maltreatment in the courts by feminist or otherwise doctrinaire judges,

an important social question. He had no knowledge of Justice

L'Heureux-Dubé's personal tragedy of her own husband's suicide. To

attribute such malicious motive to him is an act of mean-spiritedness.

Some have found it expedient to do so, ignoring the personal fact that

his own father, Nellie McClung's son, had also committed suicide.

His distraught, impetuous letter reveals his own feelings of violation,

intellectually and morally, by a fellow judge in an activist higher

court which had trampled on him and his decisions before. His are

genuine feelings of hurt. However, they are not permitted to judges, or,

rather, the feelings are permitted but are not allowed public action in

newspapers. Is his grievance a real grievance? If so, in which court

does corrective action rest? Where does a remedy rest for his grievance

from her excess, or must he simply bear it and endure it like a man? The

issue turns on these questions. What is the judicial remedy for excess

or abuse from one judge to another or from one court to another? What

are the consequences for justice itself and for the accused, the

recipient of the said judgment? etc. etc., see below.

……………………………..

Here is what Senator Cools had to say yesterday in the Senate. This

woman is showing us how to go about conducting the relentless battle for

justice and equality. No foolin'. Her scholarship and her

parliamentary skills are national treasures.

-Eric

_______________________________

Debates of the Senate (Hansard)

1st Session, 36th Parliament,

Volume 137, Issue 116

Thursday, March 4, 1999

The Honourable Fernand Robichaud

Acting Speaker

....

Sexual Assault

Recent Decision of Supreme Court of Canada-Inquiry-Debate Adjourned

Hon. Anne C. Cools rose pursuant to notice of March 2, 1999:

That she will call the attention of the Senate:

(a) to the judgment of the Supreme Court of Canada in the sexual assault

case Her Majesty the Queen v. Steve Brian Ewanchuk, delivered February 25, 1999, which judgment reversed the Alberta Court of Appeal's judgment upholding the trial court's acquittal;

(b) to the intervenors in this case, being the Attorney General of

Canada, Women's Legal Education and Action Fund, Disabled Women's

Network Canada and Sexual Assault Centre of Edmonton;

the acquittals of two Alberta courts;

(d) to the lengthy concurring reasons for judgment by Supreme Court of

Canada Madame Justice Claire L'Heureux-Dubé, which reasons condemn the

decision-making of Mr. Justice John Wesley McClung of the Alberta Court of Appeal and the decision of the majority of the Alberta Court of

Appeal;

(e) to Mr. Justice John Wesley McClung's letter published in the

National Post on February 26, 1999, reacting to Madame Justice

L'Heureux-Dubé's statements about him contained in her concurring

reasons for judgement;

(f) to the nationwide, extensive commentary and public discussion on the

matter; and

(g) to the issues of judicial activism and judicial independence in

Canada today.

She said: Honourable senators, one wonders what American feminist

Catharine MacKinnon's book, The Theory of the Feminist State, has to do

with law and jurisprudence in Canada. What does a raw, gender feminist,

ideological diatribe that seeks to criminalize man-woman sexual

relations have to do with the Supreme Court of Canada, or with an

Alberta Superior Court judge, the grandson of Nellie McClung? Catharine MacKinnon, a gyno-centric feminist, postulates that man-woman sexual relations are abhorrent because they violate women, and that in a patriarchal society all heterosexual intercourse is rape. MacKinnon helped to craft sexual assault laws in Canada. This gender feminist ideology has driven much law in Canada, and consequently has driven much injustice. It has ravaged law, justice, many careers, and many human lives. It worked for many years. It was even lucrative. It resulted in positions, jobs, grants, and even appointments to the bench. It created a terrible silence as it inflicted obvious injustices on many. It was

buttressed by feminist terrorism and aggression, ready to pursue to destruction anyone who gets in its way, while chanting its mantra that all evil and violence are men's, and that all goodness, virtue, and truth are women's. This week, it is driving an attack on Mr. Justice John Wesley McClung of the Alberta Court of Appeal.

Honourable senators, the political divide on the bench between the

activist judges - some charter, some feminists - and the traditionalist

judges, supported by their corollary divide at the bar, has erupted into

public consciousness with the force that attends the eruption of a

longstanding, fomenting social problem. I speak of the Supreme Court of

Canada judgment delivered on February 25, 1999 in the case of Regina v.

Steve Brian Ewanchuk, in particular, Madame Justice Claire

L'Heureux-Dubé's concurring reasons for judgment and her stinging attack n Mr. Justice John Wesley McClung, and his distraught letter to the

National Post.

Mr. Justice McClung is a scholar of the law, a great jurist, and a great

luminary of the bench of Canada. He has upheld the law as an instrument

of justice. He has upheld parliamentary institutions as the givers of

the law and public policy, and has declined to join the current judicial

activism and certain judges' unashamed and unabashed entry into

politics. He is persona non grata with the judicial, charter, and

feminist activists.

The Supreme Court's Madame Justice Claire L'Heureux-Dubé is well known as a feminist judge.

(1540)

About judicial activism and its consequences, Professor Diane Martin of

Osgoode Hall Law School, in an April 18, 1998 Globe and Mail article,

entitled "Lawyer says top court deserves tough criticism," said:

Children and women are treated as truth tellers for the purposes of

their claims...

A trial is not a determination of what happened anymore. The presumption of innocence has taken a major hit over the last 15 years under the guise of offering protection to vulnerable witnesses.

Sexual assault trials are a case in point.

Honourable senators, these two justices, McClung and L'Heureux-Dubé,

have dominated news reports this week. Shortly after his first letter,

Mr. Justice McClung apologized profoundly and generously to Madame

Justice L'Heureux-Dubé for his hasty letter. This apology was published

on March 2 in the newspapers. "Off with his head," shriek his critics,

many gender feminists and their supporters, as they polarize and

mobilize citizens to Madame Justice L'Heureux-Dubé's side. "Complain to the Judicial Council," and "Remove him," shriek others. The public has

no appetite for gender feminist injustice and the public discussion is

revealing this. Criminal lawyer Edward Greenspan's op-ed entitled,

"Judges have no right to be bullies," in the National Post of March 2

stated, at page A18:

The profound reaction of the legal community, lining up on Judge

L'Heureux-Dubé's side and ignoring the fact that her hurtful and

thoroughly unnecessary words started the battle, is a striking example

of how politics has taken over the issues surrounding sexual assault. It

is clear that the feminist influence has amounted to intimidation,

posing a potential danger to the independence of the judiciary. I

deplore any attempt to use the Canadian Judicial Council as an agent of

the women's movement, through the filing of complaints against judges

whose remarks do not accord with the feminist world view. Feminists have entrenched their ideology in the Supreme Court of Canada and have put all contrary views beyond the pale.... But to call for Judge McClung's

removal or censure means the feminists and their fellow travellers have

created such a repressive and authoritarian world that certain words are

not only unacceptable, but now constitute misconduct. The feminist

perspective has hi-jacked the Supreme Court of Canada and now feminists want to throw off the bench anyone who disagrees with them...

Judge L'Heureux-Dubé was hell-bent on re-educating Judge McClung,

bullying and coercing him into looking at everything from her point of

view.

Honourable senators, as members of Parliament, we have a special role in

the superintendence of the behaviour of judges and a representative role

in upholding the public interest in this. I believe that radical

judicial activism is a serious threat to parliamentary sovereignty and

its corollary, judicial independence. Judicial independence, which I

strongly support, is a constitutional convention that governs the proper

relationship between the cabinet, Parliament, and the judiciary.

Constitutional conventions are political rules of political conduct that

govern the politician's exercise of power. Conventions are not law and

are not enforceable by the courts. They are a political morality and are

enforced by politics, politicians and political process. In respect of

Mr. Justice McClung's letter to the newspaper, I must assert and support

the traditional principle that public statements on public issues are

inappropriate for judges.

Honourable senators, last August 23, 1998, at the Canadian Bar

Association's annual meeting in Newfoundland, Supreme Court Chief

Justice Antonio Lamer made some well-publicized political and public

statements condemning judge-bashing and also about judges' need to speak publicly. He asked the Judicial Council, of which he is the chairman, to address the issue. Chief Justice Lamer makes such public political statements regularly. For example, in his CPAC television interview on December 9, l996, he criticized the Senate's actions to change Bill C-42, which he called the "Louise Arbour amendment." A few days prior, the Senate had rejected, nay defeated, Chief Justice Lamer's own will and intentions about Canadian judges' international activities and their remuneration. He said:

...I was a little disappointed... when the Senate amended this Arbour

amendment.

I was a little disappointed, but I found another way, and I'll be going

to have lunch today with Madame Huguette Labelle, the head of CIDA, then I think we're going to go through CIDA. Well, where there's a will,

there's a way.

I'm speaking to Madame Labelle, as I said, I'm having lunch with her

today, then I will be speaking to the Commissioner of Judicial Affairs

Friday. I'll have lunch with him Friday and I think we'll get the ball

rolling very soon.

Again, in an August 29, 1997 article, "Canada's new global role: `Juges

sans frontières'," when Lawyers Weekly asked Chief Justice Lamer about

the senators' objections to Canadian judges' off-the-bench foreign

activities in Bill C-42, he said, at page 2:

I don't think that criticism was valid, and I don't think that most

members of the Senate agreed with that criticism...

So much for Parliament's will and Parliament's unanimous vote.

Honourable senators, the Chief Justice is quoted frequently on many

public policy and political issues, including bills in Parliament,

Senate work, abolition of the Royal Assent ceremony, and other

questions. In fact, the Supreme Court's Chief Justice Lamer has led on

judges' public statements in the media and on public statements about

judge-bashing. No judge can now assert that Justice McClung should not

have spoken in the media nor that Justice McClung should not speak

publicly against judge-bashing. Further, those who assert that Justice

McClung should be investigated by the Judicial Council, of which Chief

Justice Lamer is the chairman, fail to note that the Supreme Court and

its judges have led in this activity. The Judicial Council, or rather

the sections of the Judges Act that create the Judicial Council, need

Parliament's review and change. These provisions predate the Charter of

Rights. I muse as to why the Supreme Court has not struck down those

sections on the grounds that they predate Charter values. Those

sections, enacted in the 1970s, never anticipated these current

problems, nor the courts' own Charter activism. It is evident that the

Judicial Council is not competent to investigate any judge, particularly

Mr. Justice McClung, because of politics itself on the bench and the now

very political nature of the Supreme Court. The notion of investigation

of a judge solely by judges is quaint, but is rendered obsolete by the

politicization of the court by its own political activism and by the

judges' own political and ideological clashes on the bench during

decisions.

Honourable senators, the issue was an appeal in the case of R. v. Steve

Brian Ewanchuk. In Canada, an accused has the right to a fair trial and

a fair judgement, uncluttered and unaffected by conflict between

individual judges, between levels of judges or between regions of

Canada's judges. That duty owed to an accused is the first and highest

duty of the court. In any appeal, a first principle is that appeal

justices, in reviewing the lower court judges' work, must limit

themselves to the law, particularly errors in the law, and not offend

nor attack their integrity, intention or intellect.

About Madame Justice L'Heureux-Dubé, Mr. Greenspan wrote in his article that:

She tagged him with a label that she has not right to tag him with. She

was intemperate, showed a lack of balance, and a terrible lack of

judgment.

I would live by a rule that when a judge overrules, it is wrong to also

pour salt in the wound or step on the lower court judge's face.

Another principle of adjudication holds that, at appeal, lower court

decisions are overturned cautiously and only with reference to law,

because lower court judges are in the field, so to speak - in this

instance, in Alberta - and are considered closer to the community and

the facts.