Aboriginal representation at the Supreme Court

Renewed debate over the judicial selection process is expected in light of Justice Marie Deschamps’ recent announcement that she will retire from the Supreme Court of Canada at the end of the summer. In constitutional democracies such as Canada, where judges weigh in on important social and moral questions and have the power to strike down legislation, the legitimacy of courts tends to correspond with a judiciary that reflects the composition of the people. Yet surveys demonstrate that the federal government has almost exclusively appointed white judges in recent years.

Changes to the composition of the judiciary typically occur at a glacial pace because of judicial tenure and limited diversity in the pool of qualified candidates. While all Canadian courts currently fail to reflect the population, some advances have been made, particularly at the Supreme Court where the bench is comprised of five men and four women (being much more gender representative compared with the Supreme Court of the United Kingdom where there are eleven men and one woman).

The problem of under-representation is especially acute when it comes to Canada’s aboriginal population. According to the Aboriginal Justice Implementation Commission there are only 18 aboriginal judges serving on various courts across Canada. Yet courts frequently decide cases of special significance to aboriginal communities, such as those at the Supreme Court over the past few years on the sentencing of aboriginal offenders, the interpretation of treaty rights, and land claims.

Some academics and advocacy groups have promoted a permanent seat on the Supreme Court for an aboriginal judge, drawing a comparison with the statutory guarantee providing Quebec with at least three judges on the Court because of its unique civil law system in provincial matters. This suggestion was rejected by the Harper government on the basis that reserving a seat for an aboriginal judge would involve “judging people on the basis of their race.”

As an alternative to a permanent seat, the government could increase the representation of aboriginal peoples at the Supreme Court by borrowing an idea from the United Kingdom. When creating its new Supreme Court in 2005, the British Parliament enacted legislation that empowered the chief judge to temporarily appoint “acting judges” to hear appeals alongside the ordinary judges. This power is typically exercised when the Court lacks expertise and seeks to benefit from the experience of a lower court judge in a particular case. The U.K. Supreme Court sat with acting judges in four cases in the past year, being 7 per cent of the total number of cases heard by the Court.

If adopted in Canada, this change would enable our chief justice to invite one or two lower court aboriginal judges to hear Supreme Court cases involving issues of special significance to aboriginal communities. Not only would these temporary appointments add a valuable perspective to the decision-making process of the Supreme Court’s ordinary nine-judge panel in such cases, they may also increase the legitimacy of Supreme Court judgments in the eyes of our aboriginal communities. Providing the chief justice with this power would be a step in the right direction toward increasing aboriginal representation at the highest levels of the Canadian judiciary.

Lorne Neudorf is a member of the Law Society of Upper Canada and PhD candidate in law at the University of Cambridge, where his research examines the independence of the judiciary.

Original Article
Source: the star
Author: Lorne Neudorf