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SUPREME INJUDICIOUSNESS
The nomination of Justice Marshall Rothstein by Prime Minister Harper to
be the next Justice on the Supreme Court of Canada is an act of supreme
injudiciousness. A native jurist or other minority was due for appointment
this time around if we take the notions of multiculturalism, equality and
diversity as seriously we proclaim them in national and world forums.
Native jurists were on the short list for possible appointment. Once
again, justice has been served, Canadian-style: much talk but no action.
Professor david Tanovich's latest book has an apt title: THE COLOUR OF
JUSTICE; POLICING RACE IN CANADA, the first sentence of which reads: "The
colour of justice in Canada is white". How presient the title and
statement are to the recent and historic appointment quotient to the
Supreme Court of Canada by our governments.
In Canada, what excuse can the Prime Minister find and give now for not appointing an aboriginal person or another minority person to the Supreme Court? The height of supreme injudiciousness has indeed been reached. In an excellent article that appeared not long ago in the GLOBE AND MAIL, entitled, "A Supreme Test of Inclusion", Phil Fontaine (Chief of the Assembly of First nations) and Dianne Corbiere (President of the Indigenous Bar Association) answer every conceivable objection put forward by those opposed to the appointment of aboriginals and other minorities to the Supreme Court of Canada. They state that aboriginals are not minorities, but represent distinct entities that predate all comers to Canada, aboriginals had their own distinct legal, political and cultural systems equal to that of the English and French, they were not a conquered people and their unique position in the Confederation has always been recognized. Why not on the Supreme Court? Natives have highly qualified lawyers suitable for appointment, they will not be tokens. The Canadian Bar Association and former Justice Minister Irwin Cotler had ruminated over the appointment of an aboriginal person. The climate for an appointment has been opportune. Even the National Post, which opposes native and minority appointments on the basis that there should be no "quotas" (refusing to acknowledge that the Supreme Court already contains quotas of three French judges, three white Ontario judges, two white western judges and one white maritime judge) grudgingly reported last year that there are qualified aboriginals out there and named two of them, one of which I have named repeatedly in my columns in the Toronto Star(2004) and Lawyers Weekly (2000) and in various media. The two named by the National Post are from the west and since the this appointment came from the west, there is no excuse the Prime Minister can give for not appointing an aboriginal or minority this time? Except ignorance and or insensitivity to the existence of other races and cultures in Canada. Tokenism does not arise because these aboriginals are highly qualified. It is time to launch Canadian multiculturalism into the 21st century. As Professor Daniel Munro stated in his article in the TORONTO STAR of August 18th, 2005, "it's time we adopt a more democratic approach to dealing with our multicultural reality. We should focus on improving the representation and participation of ethnocultural groups in the main-stream political process rather than offering protections or exclusions from that process". A supreme court appointment of an aboriginal or minority person would have been a good start.
