Justice strikes again

The judge who once compared homosexuals to multiple murderer Jeffrey Dahmer is back in the news.

This time, the Alberta Court Of Appeal’s Justice John McClung has captured headlines for an attack on the Supreme Court’s top woman after she wrote a devastating critique of one of his legal judgments.

“The personal convictions of the judge,” wrote Justice McClung of his colleague Claire L’Heureux-Dube, “delivered again from her judicial chair, could provide a plausible explanation for the disparate (and growing) number of male suicides being reported in the province of Quebec.”

McClung also assailed her for a “graceless slide into personal invective.”

The letter, published in the National Post last week, came on the heels of the Supreme Court’s Feb 25 unanimous decision to overturn McClung’s ruling in a controversial sexual assault case.

McClung had acquitted a man accused of sexual assault, on the ground that the victim had actually consented. According to McClung, the fact that she had said “no” – three times – didn’t matter. And in a now infamous passage, McClung said that it wasn’t as if the victim has presented herself to the accused “in a bonnet and crinolines.”

In a brief, separate judgment, Justice L’Heureux-Dube wrote that comments about bonnets and crinolines was based on the kind of outdated stereotypes no longer acceptable in Canadian society.

McClung has since come under fire across the country.

In what is generally seen as an effort to save his job, McClung has now described his letter as “an overwhelming error” and apologized.

First, he tried to explain what he really meant, saying that it wasn’t as if the 17-year-old single mother was “lost on her way home from the nunnery.” (The woman was invited into a trailer for what was being called a job interview.)

Then, McClung claimed not to have known that Justice L’Heureux-Dube’s husband had committed suicide in 1978, but that his remarks were simply intended “as a facetious chide to the judge.”

The suicide, however, is well-known in legal circles. And McClung implied that he and his Supreme Court colleague had some sort of connection; he had noted that the ruling “issued with ‘the added bitterness of an old friend.'”

Justice McClung is no newcomer to public controversy. Lesbians and gay men may remember his comments in the Alberta Court Of Appeal decision in the Delwin Vriend case, which tried to add “sexual orientation” protections to the province’s human rights act.

McClung said no. In his ruling, McClung expressed his concern that including sexual orientation as a prohibited ground of discrimination might give too much protection to the wrong kind of people.

“It is pointless to deny that the Dahmer, Bernardo and Clifford Robert Olsen prosecutions have recently heightened public concern about violently aberrant sexual configurations and how they find expression against their victims,” McClung wrote.

The Supreme Court Of Canada overturned McClung in Vriend.

 
Brenda Cossman

Brenda Cossman is a professor of law at the University of Toronto, the author of Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging (Stanford University Press) and a former board member of Pink Triangle Press, Xtra’s publisher.

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