Supreme Injustice; [ONT Edition]

Munyonzwe Hamalengwa. Toronto Star. Toronto, Ont.: Sep 3, 2004. pg. A.17

Full Text (986 words)

There is an unspoken quota for Ontarians, Quebecers and women on the Supreme Court. Why not minorities? The unprecedented appointment of two supremely qualified white women from the same appeal court to the Supreme Court of Canada also represents a lost opportunity to appoint an aboriginal or racial minority Canadian to the country's top court.

Mainstream Canada has concentrated on the qualifications of the appointees and the appointment process rather than the perennial issue of the racial composition and diversity of the bench.

The qualifications of the appointees and the appointment process are much ado about nothing.

The appointment process can be dealt with quickly Change the Constitution and deprive the prime minister of the sole power of appointment. How many times have we heard about reforming the Constitution on everything other than the power of appointment of the Supremes?

The issue of qualifications can also be easily disposed of.

Every modern appointment to the Supreme Court has been lauded without fail. No one has uncovered any scandals involving any justice prior to and after his or her appointment. No one has accused a justice of not being qualified academically.

A few pundits have talked about the ideological propensities of some of the appointments, but these have nothing to do with qualifications to sit on the court. Each justice - left, right or centre - will bring ideological baggage to the table.

The issue we should now be addressing is the racial and cultural composition of the judiciary and equality in the justice system. Why can't Canada add another quota to the appointment system?

There is a current quota of three Quebecers to the Supreme Court, a quota of three Ontarians to the court, a quota of two westerners to the court and a quota of one from the Maritimes in the court. In recent times, there has been a quota of a white woman or two added to the court.

Why can't this quota include someone from a racial minority? This has already happened in the U.S. Supreme Court. And there is a quota of everyone in South Africa's Constitutional Court (equivalent of the Supreme Court of Canada).

Every time the issue of a quota is raised, it framed as if this only applies to a minority appointment and is therefore somehow improper when, in fact, the court has always had quotas, even if this is not publicly acknowledged.

Why have a quota of a minority? The same reason there are quotas for Quebecers, Ontarians, women etc. This should not be difficult to grasp; Canada is, after all, a multicultural society.

Justice Minister Irwin Cotler has raised the possibility of an appointment of an aboriginal person to the Supreme Court. The Canadian Bar Association also recently raised this issue but no one

has pressed it.

Whenever the opportunity has arisen to appoint an aboriginal or a racial minority to the Supreme Court, there is either a deafening silence or the pundits raise a familiar refrain There is no aboriginal (or other minority) who is qualified.

A Toronto Star report pointed out on Feb. 21, "Ontario has three aboriginal trial court judges but none at the appeal level. Catapulting a trial court judge to the country's loftiest judicial perch is completely unheard of ... it is far more common for the government to go trolling for judicial candidates in provincial appeal court, because their work focuses on writing and developing the law ..."

Based on this thinking, we shall wait another century to have an aboriginal or other minority person appointed to the Supreme Court because few minorities have made it as provincial court of appeal judges.

One is Indian-born Justice Russell Juriansz, who was appointed to the Ontario appeal court in March. Given his relative novice standing, he cannot be expected to leapfrog to the front of line for a Supreme Court appointment any time soon.

However, there should have been many more minority judges appointed to the appeal courts.

One deserving case was Juanita Westmoreland. She was appointed to a lower court in Quebec after serving as Dean of the Faculty of Law at Windsor as well as Employment Equity

Commissioner of Ontario. This should have led to a post in a higher court.

All previous appointments from deanships across Canada have been to Superior Courts or to the Federal Court.

An aboriginal, Mary Ellen Turpel-Lafond, holds enviable academic credentials that include a B.A. from Carleton University, a law degree from Osgoode Hall Law School, a master's from Cambridge University, and a doctorate from Harvard.

Still, she was appointed to the provincial bench in Manitoba. No other white jurist with such qualifications has started that low in the judicial hierarchy in the recent past.

The provincial bench is usually reserved for practising lawyers, not academics.

The issue of serving time at provincial appeal courts never arises when it involves the appointment of a white jurist. Bay Street lawyers get appointed straight to the Supreme Court. The examples of John Sopinka and David Binnie come to mind. So the process is flexible when it wants to be.

For example, in the not-so-distant past there were no women, only white men, at the Supreme Court. Pierre Trudeau changed that practice. He did the same when he appointed Bora Laskin as chief justice when tradition required he choose a senior jurist; Laskin was not.

This demonstrates again that when it comes to Supreme Court appointments, nothing is cast in stone. There are many aboriginals and minorities who could be appointed straight from private practice.

Canada must look for them, as it did for white men and women. How long do we now have to wait?

Munyonzwe Hamalengwa is a Toronto lawyer whose recent book is a biography of criminal lawyer Clayton Ruby. He is the author of International Law Of Human Rights In Africa and has just completed a manuscript on blacks in law in Canada.