'It's time to appoint person of color to top court' Toronto Star. Toronto, Ont.: Sep 7, 1999. pg. 1

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The announced retirement of Chief Justice Antonio Lamer of the Supreme Court of Canada has led to much speculation about his replacement - and another appointment to the court.

Again, there is a deafening silence about the possible appointment of a person of color.

Qualified minority candidates include Juanita Westmoreland Traore, former Ontario Employment Equity commissioner and dean of the University of Windsor law school, and now a Quebec Provincial Court Judge. There are others as well.

Why is it recognized that appointment of female judges is critically important to the enhancement of equality but nothing is said about the importance of appointing judges from minority communities?

In the November 1998 issue of Elm Street, for example, Judy Rebick, former president of the National Action Committee on the Status of Women said this: "There is no question that the Charter is the principle reason for the more progressive decisions of our courts, but the contribution of female judges has also been critical."

In a speech by Justice Bertha Wilson, then of the Supreme Court of Canada, entitled, "Will Female Judges Make a Difference?" and delivered at Osgoode Hall Law School in February, 1990, she said, "if women lawyers and women judges through their differing perspectives on life can bring a new humanity to bear on the decision-making process, perhaps they will make a difference. Perhaps they will succeed in infusing the law with an understanding of what it means to be fully human."

It is stated in Rebick's article that women judges have helped Canada build an enviable record of equality and that it is time to deepen and not erode the feminist impression.

Do you think the rubric "women" includes female judges from minority communities? I don't think so.

Rebick says that Justice Minister Anne McLellan has kept her promise to appoint more women judges. Of almost 1,000 federal judges, 19.25 per cent are women, compared to 12 per cent in 1993. Thirty-seven per cent of McLellan's appointments have been women.

But there are no statistics with regard to the appointment of judges who are members of a visible minority.

Why?

Because there are hardly any such judges and because most people don't care.

But some of us do care. The omission of any mention of a possible minority appointment to the Supreme Court of Canada is troubling.

Is Canada never going to set an example?

This is my research based on observation. I go to a lot of courts and administrative tribunals. During October, November and December, 1998, I wasliving near federal prisons, conducting parole hearings. Over a three-month period, I never appeared before a parole board panel that had a visible minority member.

There is only one immigration adjudicator that I know of who is of African ancestry. There is a handful of minority board members at the refugee division and none at the appeal division of the Immigration and Refugee Board. There is no minority judge that I am aware of at the Ontario Court of Appeal and I appear there often.

There is only a handful of minority judges at the Ontario Court and Superior Court of our province.

There are none at the Supreme Court of Canada. Other provincial and federal tribunals report only dismal numbers.

If jurors can now be vetted for racial bias, why can't federal and provincial governments be vetted for bias in the appointment process?

Further, if it can be recognized that female judges can make a difference, why can't it be recognized that minority judges can also make a difference?

If the feminist influence is encouraged and celebrated, why can't a minority influence on the judiciary be similarly encouraged and celebrated.

Don't get me wrong. Not every female or minority judge will leave an impression favourable.

I once wrote an article - published in Pride - on Clarence Thomas of the Supreme Court of the United States and how his appointment was a backward step from the forward journey of Thurgood Marshall.

Nonetheless, minority judges are required on the bench. Many may bring fresh ideas. Their presence on a panel alone, even if they say nothing, may have a positive effect.

For example, Justice Antonin Scalia of the U.S. Supreme Court said this of Marshall: "Marshall could be a persuasive force by just sitting there. Anyone who spoke in conference on one of these race issues had to be looking at Thurgood.

"He wouldn't have had to open his mouth to affect the nature of the conference and how seriously the conference would take matters of race."

Appointment of minority judges to the higher courts and the Supreme Court of Canada will not only engender a sense of equality in Canada, it will also enhance Canada's reputation internationally.