Should there be a permanent spot for an aboriginal judge on the Supreme Court of Canada? It is being proposed (see first article): https://www.bar-ex.com/barex/CAHeadlines2.jsp?catID=Gen
It’s an interesting idea, but how many potential candidates are there, i.e. how many qualified aboriginal jurists are there? Also, can an aboriginal candidate be qualified if he/she has some non-aboriginal ancestry? How much non-aboriginal ancestry would be acceptable?
The existing rule, that at least three of the justices must be from Quebec, is a cinch by comparison since you were either born in Quebec or you weren’t. I’m opposed to any kind of racial quota system, and racially-based laws and practices of any kind, simply because they so often lead to stupid and unintended results.
Incidentally, I was rather surprised to learn the Supreme Court currently has two vacancies. Yikes.
How aboriginal would someone have to be in order to qualify? Great-grandfather on your mother’s side good enough? I mean I like the idea, but like Bryan said
What a horrifying, vile, racist idea. It sounds like something some half-assed African People’s Republic of Short-Lived Compromises would come up with.
More than a century of de facto apartheid has led to more misery and wasted lives than I care to think about. The solution isn’t more racially biased rules. It’s fewer.
The lack of formal politically biased appointments to the Supreme Court of Canada, coupled with informal attempts to ensure a wide variety of judges from as many walks of life as possible, has been very successful in maintaining a terrific SCC bench.
Although I often disagree with some of the positions taken by some of the judges, I am the first to admit that their decisions are usually very well thought out. The decisions where one or more judge simply does not get it, or where one or more judge pushes a personal agenda without due regard to the law, are few and far between. This has permitted us to have a somewhat activist court over the last few decades that has produced sound and usable decisions even while sorting out our new rights under our constitution, and dealing with a great many social changes, ranging from women’s and gay rights to corporate freedom of speech to mind numbingly complex tax decisions. Quite simply, they kick ass.
If the SCC were composed only of old establishment white guys, I am concerned that the depth and flexibility of the bench would suffer greatly. Having men, or women, or aboriginal persons, or persons of colour, or persons with disabilities, or persons of minority sexual orientations, or persons from straightened financial circumstances, sitting on benches throughout our nation can tremendously benefit our judicial system by making the judiciary more representative of the populace.
But first and foremost, any appointee to the judiciary should be highly qualified to handle legally and socially complex matters, and any appointee to the provinces’ and territories’ courts of appeal or to the Supreme Court of Canada should be the best of the best. Anything less would do a great disservice to the judicial system and to the populace.
Presently there are very few aboriginal lawyers, and extremely few aboriginal judges (sixteen or so in the country, and one new Metis judge - - Ducharme who very well could go all the way in time). If one is ready for the top court, then by all means put that person on its bench, but I simply do not see a sufficient number of exceptionally highly qualified aboriginal persons who would ensure that a reserved aboriginal seat on the highest bench would always be filled with the best of the best on an objective scale as against all other non-aboriginal lawyers and judges.
If the objective is to have full representation, including aboriginal persons, on our highest court, I submit that the best way to do this is to have full representation throughout the judicial system, which would start with making efforts at both encouraging and enabling aboriginal persons to take up law as a career.
There can be many barriers to an aboriginal person succeeding in law. Most have to do with poverty and cultural isolation. If we deal with such problems, there will be sufficient aboriginal lawyers and jurists to ensure that aboriginal concerns are well met in the judicial system. If we do not deal with such concerns, then the system as a whole will not be as inclusive as it could and should be, and a reserved seat on the Supreme Court of Canada could very well lead to less well thought out decisions.
It is very premature to consider reserving a seat on our highest court.
I can only answer as a subset or a specific application of my overall attitude towards affirmative action, because this is essentially an affirmative action measure – there’s nothing to prevent one of the remaining spots from also going to a qualified aboriginal person, or all of them for that matter, etc etc, you all know the deal.
Affirmative action is a fairly effective and tolerable short-range solution that makes lots of sense in the depths of longstanding, institutionally-structured discrimination and in the shadow of historical oppression; it loses effectiveness as those inequalities start to balance out, as it maintains and insists upon underlining the inequality even as it fades from the social landscape generically, even if it still works to undo perniciously persistent social/informal inequality that handicaps individuals; and once the inequality has (otherwise) been eradicated from everywhere other than the history textbook, it can only remain in existence as a political abomination, a structured inequity that discriminates against a class (or multiple classes) of people.
In the United States, it is politically popular nowadays to declare that condition III is in effect and we’ve got to uproot these silly laws. I disagree with that, but we’re deep into condition II on our biggest & most obvious social unfairnesses at least and need to build in expiration dates and formal overt acknowlewdgements that these are temporary solutions that would be unfair if preserved in perpetuity.
I won’t pretend to be up on the social realities of Canadian social and political realities for aboriginal folks but I think the same logic would have to apply and the word “permanent” therefore looks indefensibly out of place.
Why? Does being indigenous make especially sensitive to the law? I would presume that members of ‘First Nations’ would decide court cases much as anyone else does.
Being indigineous does not make one especially sensitive to the law, but being indigenous increases the probability of one being especially sensitive to indiginous positions to which a non-indigenous person might not be as sensitive.
Canada is a first world country in which a great many indigenous persons live a third world existence of poverty, poor health, suicide, violence, and cultural dissassociation. It is feared that old white guys simply don’t get it when trying to understand aboriginal concerns, andit is generally proposed that effective solutions must come from within the aboriginal community, rather than imposed from without.