Never had a Canadian Supreme Court judge been attacked like this.
Claire L’Heureux-Dubé had just been publicly blamed – by a judge from Alberta’s highest court – for the high male suicide rate in Quebec. Compounding the insult, Ms. L’Heureux-Dubé had lost her own husband to suicide two decades earlier.
What happened next, within the court itself in that 1999 episode, is revealed in legal historian Constance Backhouse’s groundbreaking biography, Claire L’Heureux-Dubé: A Life, using documents from the personal papers of Ms. L’Heureux-Dubé, now 90.
Chief Justice Antonio Lamer chose not to speak up in her defence, prompting the fiery Ms. L’Heureux-Dubé to send a memo to all eight of her colleagues. Pointedly, she told them that Israel’s Chief Justice, Aharon Barak, had defended his court when it was under attack.
Stung, and fighting to keep the court united behind him, Mr. Lamer responded with his own memo to all the judges, accusing Ms. L’Heureux-Dubé of being unfair to him.
It’s an explosive moment from the secret history of a court whose power to shape the country has grown in the decades since the 1982 Charter of Rights and Freedoms came into being. It occurred after a case that, even now, almost two decades later, defines consent in sexual-assault law. And it spoke volumes about the beleaguered feelings of a trailblazing judge – the second woman ever on the Supreme Court of Canada – who became known for defending the rights of women, gay and lesbian people, and refugees.
Yet, today, similar moments are at risk of remaining secret.
A year ago, the court signed an agreement with Library and Archives Canada that imposes a 50-year embargo on “collegial documents” – such as e-mails and memos on cases, shared between the judges. (The agreement uses the expansive term “in relation to judicial proceedings before the Court,” suggesting that if the Lamer/L’Heureux-Dubé dispute happened today, it would be covered by the embargo.) Chief Justice Richard Wagner has said the agreement was necessary to protect deliberative secrecy.
The new biography, published last winter, marks the beginning of a cultural shift in Canada, the first truly intimate biography of a Supreme Court judge in the Charter era.
It documents, among other things, Ms. L’Heureux-Dubé’s desperate struggle to protect her son, Pierre, a drug abuser and convicted criminal, from a spiral of self-destruction, even while she was on the country’s highest court. He died, in 1994, of an infection acquired in prison when he was 30.
The book also reveals new details about the 1978 death of her alcoholic husband, Arthur Dubé, who shot himself in the head with a hunting rifle. Her daughter, Louise, then 18, and Pierre, 14, stumbled onto the grotesque and bloody scene. Initially, Ms. L’Heureux-Dubé was outraged. “Why did he do it in the house?” she recalled thinking. “Did he want to give us unnecessary pain?” But eventually, she said, “I was able to understand that he wasn’t in his right mind.”
The former judge spent 30 days over seven years – sometimes in day-long interviews, including over meals – speaking in deeply personal terms with Ms. Backhouse, who teaches legal history and holds the University Research Chair on Sexual Assault Legislation at the University of Ottawa. She also introduced the biographer to friends as far back as childhood, family members and colleagues.
“They responded to her openness with openness,” Ms. Backhouse said.
But although Ms. L’Heureux-Dubé eased the author’s path, the biography is not authorized – the former justice had no say over what went into the book.
Judges have made seismic changes affecting day-to-day life under the Charter: legalizing gay marriage, prostitution and assisted dying. Yet, legal historians have been slow to examine the nexus between who judges are and how they rule.
“Will we admit, finally, that politics, one’s small-p politics, has an impact on the judicial rulings that one makes?” Ms. Backhouse said in an interview with The Globe and Mail. “Because we’ve been all pretending that it never did. And of course in my view it always does, but it’s muted, it’s subtle, it’s not spoken.”
Her position reflects an evolving view of the relationship between courts and the society in which they operate. The traditional view has been that legal principles and doctrines are what matter, and judges merely apply and articulate them in new circumstances.
“Do you make the law transcendent? If so, then you don’t have creativity so much as articulating and discovering as the function of the judge,” University of Manitoba legal historian DeLloyd Guth said in an interview.
The emerging view, by contrast, is of “initiators, creators, innovators, people of courage,” who create law. “Constance represents maturation of the view that the individual judge can make a big difference,” he said.
Until now, the leading Supreme Court biographies of the Charter era, such as those written about chief justices Brian Dickson and his predecessor, Bora Laskin, focused on their subjects' professional careers and legal philosophies, not their personal lives.
The late Mr. Dickson, while granting his biographers wide access to his private papers, was reticent about his private life, according to the preface of Brian Dickson: A Judge’s Journey, by Robert Sharpe and Kent Roach, published in 2003. The late Mr. Laskin’s family declined to speak with Philip Girard for his 2005 biography.
Ms. Backhouse’s 745-page opus (which includes 200 pages of footnotes), the product of at least 10 years’ work, is in keeping with the more personal approach to judges and judging in the United States, where well-known figures such as the late Antonin Scalia have had multiple biographers, and even current Supreme Court judges such as Clarence Thomas and Sonia Sotomayor have written highly personal autobiographies while sitting on the court.
The 1999 episode involving the Alberta judge who blamed Ms. L’Heureux-Dube for Quebec’s high suicide rate brought the justice, who had been on the court for more than a decade by then, to wide public prominence. John McClung, grandson of the suffragette Nellie McClung, was a judge on the Alberta Court of Appeal. He had written a ruling in 1998 acquitting Steve Ewanchuk of sexually assaulting a 17-year-old girl who had ventured to his trailer after a job interview. The McClung ruling implied she had invited sex because she had worn shorts and a T-shirt, saying she had not gone to him in a “bonnet and crinolines;” it suggested a “well-placed knee” would have been more apt than charging him.
The Supreme Court was unanimous in rejecting Mr. McClung’s views, and in convicting Mr. Ewanchuk. But Mr. Lamer would not let Ms. L’Heureux-Dubé write the main ruling for the court, the new biography reveals. So she stayed up all night to write a concurring ruling – “I wrote with rage” – criticizing Justice McClung’s use of myths and stereotypes about sexual assault. Just one other judge, Charles Gonthier, signed on to that concurrence.
She found her colleagues’ response nothing less than cowardly.
“Courage does not abound in the corridors of our court!” she observed acidly in writing. (Ms. Backhouse found the observation in her personal papers.)
It was her dissection of rape myths in her ruling that prompted Justice McClung to level his public accusations at her.
Ms. L’Heureux-Dubé was known during her 15 years on the Supreme Court – she was appointed by Brian Mulroney in 1987 and retired in 2002 – for an unusual dichotomy in her rulings: A staunch defender of women and minorities, she was also the court’s toughest on crime and on the rights of accused criminals.
Ms. Backhouse asked Ms. L’Heureux-Dubé whether her son’s experiences might have hardened her views about the importance of longer sentences. After a string of crimes, including vandalism and robbery, he seemed to be making progress in juvenile detention, but then escaped; she found him hiding in a closet at home in Quebec City. She emphatically denied that her son’s experiences influenced her rulings, saying she used common sense and was for “the little guy” – that is, the victim of crime.
But her daughter, who has a law degree, views her differently.
“I think the reality is more complex, and I think she herself wants to discredit that complexity,” Louise Dubé told Ms. Backhouse.
Ms. Backhouse, the author of 10 previous books, has always loved the study of history. “I went to law school because I didn’t think there would be so many jobs for historians," she says. "I’m really a frustrated historian who found law by accident.”
Through stories, she says, what can seem like the arcane disciplines of history and law become easier to grasp. “I’ve been using the narrative model because I find it easier to learn history that way,” she said. “To read a story and hear about people and place and time, it sticks in my head better.”
Although many painful events unfold in Claire L’Heureux-Dubé: A Life, nothing could knock its subject down for the count. Even after her husband’s death, the justice continued sitting on the busy circuit court, taking no bereavement leave while travelling to distant communities to hear cases.
“She’s an extraordinary woman,” Ms. Backhouse says. “That’s what her judicial colleagues said about her. They said they couldn’t imagine somebody going through as much as she did in her personal life, that much tragedy, that many personal challenges, even getting up in the morning.”
Let alone blazing trails throughout her life.