Canada doesn't need another legal system

The Gazette
Monday, November 29, 2004

Federal justice minister Irwin Cotler has floated a series of really bad ideas in the last couple of weeks, none worse than his suggestion that Canada's indigenous people should have their own justice system.

Canada, as Cotler pointed out last week, already has two legal systems--the Code Civil in Quebec and Common Law everywhere else.  And that, he seemed to suggest with a "logic" we can't quite follow, proves we can handle three.  Even if it did prove that, it wouldn't explain why we should.

But even if Cotler's comparison is true, it's weak.  To begin with, the Code Civil applies, as its name suggests, only to civil matters --contract disputes, damage suits, divorce proceedings, land titles, inheritances, etc.  Criminal law, which is what most people mean when they talk about the justice system and certainly what they mean when they talk about the injustices Canada's First Nations people sometimes suffer when they end up in court, is uniform across Canada.  The Criminal Code, the rules of evidence and the rights of the accused are essentially the same everywhere in the country.  And so they should be.

Second, the Code Civil is not ethnic-based.  It applies to all Quebec residents, whatever their origins; a Loyalist Townshipper can't insist on a Common Law judge.  And it applies only to Quebec residents; a New Brunswick Acadian can't have his divorce adjudicated under the Code Civil.

If Cotler had simply proposed measures to assure native individuals get a fair shake in our courts, or even community involvement in determining some sentences, that would be one thing.  But what he seemed to be suggesting far more when he spoke to The Gazette's Elizabeth Thompson last week.  Canada, he said, "has to start thinking in terms of pluralistic legal traditions," which sounds dangerously like different laws for different people, depending on their ethnic backgrounds.  Imagine a Mohawk, say, and a non-native who take a joyride together in a stolen car.  Would Cotler have them tried in different courts according to different traditions?  Surely not.

It's bad enough that Ontario is flirting with the idea of introducing Sharia courts to mediate some civil and family matters for the province's growing Muslim population.  Expanding such privileges across Canada's cultural mosaic could turn the country into a patchwork of competing laws.

And why limit this new franchise to aboriginals and newcomers?  Perhaps francophone Canadians will want to re-introduce trial by combat as practised by their Norman ancestors, or Scots will start insisting on 14-person juries with three possible verdicts--guilty, not guilty and "not proven."  And maybe the Roman Catholic Church will ask that its ecclesiastical courts regain their prerogative to judge members of its clergy, no matter what the charges against them.

There are precedents for this sort of thing.  Non-Muslim communities in the Ottoman Empire, for example, had their own internal legal systems.  But surely Cotler isn't holding up the rule of the theocratic sultans as our model.  A secular state with full equality before the law for all citizens has long been our ideal, and our reality, and should remain so.