Personalizing the Political and Politicizing the Personal: Understanding Justice McClung and his Defenders
| Author | Sheila Mcintyre |
| Pages | 313-346 |
Seventeen
Personalizing
the
Political
and
Politicizing
the
Personal:
Understanding Justice McClung
and his
Defenders
SHEILA MCINTYRE
Introduction
We
are all
students
of
this
language called
equality.1
My
preferred focus
is
thus
not on the
difference
that
women
and
other
previously
excluded groups
will
make
in
judging,
but on
how we can
enable
all
judges, indeed
all
individuals
in
positions
of
authority
and
power,
to
make
a
difference,
and to
ensure that
the
law
responds
not
only
to the
needs
of
those whose interests
it has
traditionally served,
but to
those
of all
members
of
society.2
When
I
first
thought about what
I
would most want
to
celebrate
of
Justice
Claire
L'Heureux-Dube's
immense contribution
to
Canadian
and
interna-
tional law,
I
immediately thought
of her
dissenting
opinion
in R. v.
Seaboyer?
Openly reliant
on
feminist legal
and
social science scholarship
as
authorities
to
document "the prevalence
and
impact
of
discriminatory beliefs"
on the
substance,
enforcement,
and
interpretation
of
sexual
offence
laws,4
and
relentlessly
fact-driven
and
concrete,
her
1991 dissent
is
memorable
on
three
counts.
It is an
explicitly feminist analysis
by a
Supreme Court
of
Canada
judge.
It
illustrates
the
method
and the
virtues
of a
substantive approach
to
constitutional rights.
It is
unflinching
in its
deconstruction
and
repudiation
313
314
ADDING FEMINISM
TO LAW
of
the
everything-is-okay, air-brushed, purportedly neutral, liberal abstrac-
tion
of the
seven-judge
majority
opinion.5
The
power
of the
dissent derives
as
much
from
its
contrast with
the
majority's style
of
legal reasoning
as
from
its
unprecedented
feminist
content.6
In
its
grappling with realities
of
inequality
all-too-often
abstracted
from
"law,"7
the
Seaboyer
dissent remains
for me the
single most memorable judg-
ment
in
Justice L'Heureux-Dube's remarkable
oeuvre.
Her
adherence
to
sub-
stantive analysis
can be
found
in
other
inequality-sensitive
and
equality-driven
judgments:
McKinney*
Norberg9
Dickason,10
Moge,n
Mossop,12
Oso/in,13
Syraes,14
Egan,15
Thibaudeau,16
O'Connor,17Park,16
Cooper,20R.D.S.21
Ewanchuk22
and
Mercier
et
a/.23
to
name
a
few.
All of
these judgments illustrate Justice
L'Heureux-Dube's
commitment
to
speak
and
teach
the
language
of
substantive
equality.24
All
reflect
her
efforts
"to
make
a
difference,
and to
ensure
that
the law
responds
not
only
to the
needs
of
those whose interests
it has
traditionally
served,
but to
those
of all
members
of
society."25
These judgments also model
and
vindicate
her
conviction that judges
should
be
"voracious readers
not
only
of
law,
but of
developments
in all
fields,"26 and her
belief that judging
is and
should
be "an
intellectual chal-
lenge"
and "a
constant learning
process."27
I
want
to
underline
the
scholarly
dimension
of
Justice
L'Heureux-Dube's equality jurisprudence
for two
rea-
sons. First, many
of her
judgments, particularly
the
dissents, draw heavily
on
contemporary critical legal theories that challenge and/or
refute
the
unsub-
stantiated assertions
or
unquestioned dominant assumptions animating
the
reasons
of the
courts below and/or
of
fellow
Supreme Court justices.
For
lawyers
and
judges
and
social conservatives
who
disdain
new
developments
in
legal theory
and
Canadian jurisprudence (and
the
women
and
minority
men
who
produce it),
this
commitment
to
expanding
and
updating
her
jurispru-
dential resources reduces
to
ideological
bias.28
Second,
the
content,
context,
and
sources
of the
attacks directed
at
her, particularly
for her
equality
think-
ing,
are
very similar
to the
attacks directed
at the
feminist, critical race,
and
lesbian scholars
upon
whose works
she so
often
draws. They
are
also similar
to the
attacks
on
students,
staff,
and
faculty
who
have named sexism, hetero-
sexism, racism, eurocentrism, classism,
and
ablism within
the
academy.
By
drawing attention
to the
similarities between attacks
on
Justice
L'Heureux-Dube
29
and on
equality activists
in the
academy,
I do not
wish
to
diminish
the
violence
of the
personal attacks levelled against her, particular-
SEVENTEEN
«
JUSTICE McCLUNG
AND HIS
DEFENDERS
315
ly
in the
wake
of her
Ewanchuk
judgment.30
By any
measure, Justice
McClung's
notorious
outburst
on
being criticized
for the
sexism
of his
rea-
sons
in
Ewanchuk
was as
shocking
as it was
indefensible.31
The
unbridled hos-
tility
and
virulent counterattacks directed against
her by
those
who
rushed
to
Justice
McClung's defence were equally ugly. What
I
wish
to
underline, how-
ever,
is
that this
was a
proxy
fight.
Predictably,
the
personal
and
professional aspersions against Justice
L'Heureux-Dube
for
naming
and
criticizing
the
sexism
of a
senior male judge
were
laced with
the
familiar
tropes
of
anti-feminism. However,
the
sniping
against
her
served
as
mere
preface
for an
indictment
of
feminists
and
femi-
nism
in law
generally,
and of
those judges
and
legal institutions said
to be in
the
thrall
of or
cowed
by
feminists
and
feminists'
allies—notably,
gay and
les-
bian rights activists.
In the
popular
press
and in
later academic discussion
of
the
Ewanchuk controversy,
the
salvos regularly culminated
in a
wholesale
denunciation
of the
Charter
of
Rights32
and the
purportedly anti-democratic
judicial activism
and
illiberal legal order
that
the
Charter
"revolution"33
has
spawned. Justice L'Heureux-Dube became
the
personification
of a
constitu-
tional
jurisprudence utterly
opposed
by the
social, political,
and
legal conser-
vatives
who
loathe feminism
and the
social
and
legal changes they believe
feminism
has
wrought.
No
less importantly,
the
discreditation
of the
Charter
and
Charter jurisprudence turned
on
guilt
by
association achieved
by use of
discrediting
stereotypes about
the
equality-seeking
groups—particularly
feminists
and
lesbians
and gay
men—who
have advocated
and
benefitted
(in
differing
degrees)
from
substantive equality jurisprudence.
The
response
to
the
Ewanchuk decision
offers
a
paradigm
of
this two-way demonizing
of
sub-
stantive equality
and its
advocates.
The
Ewanchuk
Case
The
Ewanchuk
story
began with
the
acquittal
of a
forty-four-year-old
man
charged with sexually assaulting
a
seventeen-year-old
woman
at a job
inter-
view.34
The
trial judge found
the
complainant
credible
in her
testimony
that
she
had not
consented
to any
sexual activity with
the
accused
and had
told
him to
stop each time
he
made unsolicited,
and
increasingly invasive
and
inti-
mate, sexual contact with her.
He
also accepted
her
testimony that
she had
believed herself locked inside
his
trailer during
the
sexual assaults
and had
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