Quotas have no place on our high court

Editorial
National Post

Monday, August 15, 2005

Last summer, at its annual convention in Winnipeg, the Canadian Bar Association (CBA) scrapped at the last moment a resolution that appeared to call on the federal government to reserve one of the nine seats on the Supreme Court permanently for an aboriginal justice and to more aggressively seek aboriginal judges for the appeals courts in every province.

Amid controversy over whether race should be a determining factor � for or against � any appointee to the country's highest court, the resolution's authors withdrew it rather than see it fail.  But this year, they were back with another version, which, while watered down, still smacks of racial gerrymandering on the bench.  At its assembly in Vancouver this weekend, the organization representing Canada's nearly 40,000 lawyers and judges voted overwhelmingly to urge that the government "give particular focus" to the appointment of qualified aboriginal judges to federal appeals courts in the provinces and to the Supreme Court, but without the overt quotas contained in last year's abandoned motion.

It's clear the authors of the new motion were as determined as ever to sanction race-based appointments.  They resisted a possible modification to their resolution that would have had the CBA lobby simply for more judges well-versed in aboriginal law traditions, regardless of race or ethnicity.

Instead, this year's motion again insists aboriginals themselves be made judges at the highest levels, implying that there is no way jurists without aboriginal blood lines could ever do justice under native legal traditions.

Of the CBA motive, Assembly of First Nations (AFN) spokesman Don Kelly insisted, "Aboriginal people have definite traditions and world views that you really wouldn't understand unless you were raised and steeped in those world views."  But then how does one explain the fact that judges schooled in our common law traditions are quite capable of making sense of Quebec's civil law tradition without too much trouble, and vice versa?

And given that for the past decade and a half, with their rulings on hunting and fishing rights, treaty obligations, native sovereignty and land claims, Canada's courts have bent over backwards to appease native legal demands and accommodate native grievances, just how much more pro-native would our judges have to be before the AFN and the aboriginal law branch of the CBA � the movers of this year's motion � were satisfied that First Nations people are receiving justice?

Besides, with 24 of Canada's 700 native lawyers already on the bench, the percentage is not too far off from the 2,000 non-aboriginal judges appointed from among the country's 38,000 non-aboriginal barristers and solicitors.

The very notion, too, that there is a distinct native legal tradition is suspect.  Since Canadian aboriginals were pre-literate at the time of first contact with Europeans, most of their justice was dispensed ad hoc, and it often varied from tribe to tribe.  There are not "three founding partners" in Canadian law, as Justice Minister Irwin Cotler has claimed, primarily because there is no single native legal tradition.  Most of what today is called native legal heritage is a modern-day warm-and-fuzzy fantasy devised by activists and academics eager to encourage the conceit that European and aboriginal civilizations were equal in accomplishment.

To be sure, there are excellent native judges in the country.  Manitoba's Murray Sinclair and Saskatchewan's Mary Ellen Turpel-Lafond come readily to mind.  And it would certainly be an inspiring moment if one were appointed to the Supreme Court.  But that would only be the case if merit and merit alone were the determining factor.  Tokenism must have no role in our nation's justice system.