Justin Trudeau has unfinished business after Supreme Court pick

Posted on November 29, 2017 in Governance Delivery System

TheStar.com – Opinion/Editorial – Justice Sheila Martin should make a fine addition to the Supreme Court, but her appointment leaves the government with two important items on its judicial to-do list.
Nov. 29, 2017.   By Star Editorial Board

Prime Minister Justin Trudeau can take pride in his appointment of Justice Sheilah Martin to the Supreme Court of Canada.

Justice Martin seems perfectly qualified for the top court. Educated in Montreal, she studied both civil and common law. She has served as a judge in Alberta and on appeal courts covering that province, the Northwest Territories, Nunavut and Yukon.

Martin is bilingual and has been at the forefront of arguing in favour of women’s rights before the courts. She is also known as an advocate for increasing the representation of minorities — including Indigenous people — in the legal profession and the courts.

She’s just the kind of judge the Trudeau government wants to promote, and for good reason. It elevated her to the Alberta and northern appeal courts last year when it made its first round of judicial appointments, and has now finished the job by installing her on the top court. There’s every reason to believe she will do well.

Still, Justice Martin’s appointment leaves the government with two important items on its judicial to-do list.

Although well-versed in Indigenous issues, she is not herself Indigenous. As we and many others have argued, it is high time to see an Indigenous judge on the Supreme Court and the longer it takes the more pressing the demand will be.

The government must balance many factors in naming judges to the top court, aside from expertise in the law — representation for the civil law (essentially, Quebec) tradition; regional considerations; bilingualism; judicial philosophy; plus gender and other types of diversity.

Adding an Indigenous voice won’t be easy, but it’s essential for many reasons. It would be highly symbolic at a time when reconciliation with Indigenous peoples is more important than ever and they are vastly over-represented in the prison system. It would broaden the top court’s collective experience in dealing with Indigenous issues. And it would increase public confidence in one of the country’s key institutions.

The government must continue the work needed to make sure the pool of available candidates grows quickly. That means appointing more Indigenous lawyers to the bench, and giving those already serving as judges every chance to succeed and be promoted to higher levels.

Justice Minister Jody Wilson-Raybould has made a good start on that. On Wednesday she noted that just over 4 per cent of the government’s judicial appointments have been Indigenous (about in line with the general population) and 14 per cent have been visible minorities. That work must continue to increase the diversity in a court system that is still much too traditional.

The government must also soon name a replacement for Chief Justice Beverley McLachlin, who is stepping down on Dec. 15 after almost 18 years in the job. She leaves a fine record, and should be especially proud of standing up to the Harper government when it tried to impugn her reputation during its ill-fated attempt to name Judge Marc Nadon to the Supreme Court.

The top court should be led by someone with that type of integrity. By tradition, the position of chief justice alternates between judges from the common law and civil law traditions, which makes the senior Quebec judge on the court, Richard Wagner, the odds-on choice to succeed McLachlin.

That would be the predictable move, but the government should consider another way. Once McLachlin steps down, Justice Rosalie Abella will be the senior judge on the top court and would make an excellent chief justice.

Justice Abella is one of the most accomplished and honoured judges in the world. In January she was named Global Jurist of the Year by Northwestern University’s school of law, and has an unparalleled record on issues of human rights and inclusiveness. Her personal integrity is beyond question. She has only three years to go before reaching the court’s mandatory retirement age but could make a tremendous contribution in that time.

The government should consider following up its appointment of Justice Martin with an unconventional pick for chief justice.


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