Appoint natives, Ottawa urged
Permanent spot on top court proposed
Lawyers to debate issue in Winnipeg

TRACEY TYLER
LEGAL AFFAIRS REPORTER

Aug. 3, 2004. 06:13 AM

A branch of Canada's largest legal organization is urging the federal government to guarantee aboriginal people a permanent place on the country's highest court.

 

While Justice Minister Irwin Cotler has ruminated about appointing an aboriginal person to the Supreme Court of Canada, the Canadian Bar Association's aboriginal law section wants Ottawa to go much further.

 

In a resolution to be presented at its annual meeting in Winnipeg later this month, the association is asking the government to ensure "all three founding peoples of Canada" — English, French and aboriginal — are continuously recognized in appointments to the court. It could mean changing the Supreme Court Act to do so, says a key proponent.

 

"They might say, `Well, we've appointed one (aboriginal), that's the end of it,'" said Jeffrey Harris, a Winnipeg lawyer and aboriginal law specialist who chairs the section. "What we're saying is the court should reflect the fact there are three founding partners."

 

But a member of a group representing black lawyers is taking issue with the proposal.

 

"I think the federal government has to take into consideration the makeup of the country as it presently is, rather than relying on what the country was back in 1867," said Phillip Sutherland, a civil litigator from Vaughan who is past-president of the Canadian Association of Black Lawyers.

 

"We can all appreciate what the aboriginal motivation is," he said in an interview. "They have, quite frankly, endured centuries of discrimination. But, by the same token, there are other cultures in our society that have had similar experiences of discrimination. Where do you draw the line? That's a difficult question to answer."

 

The process of appointing judges to the Supreme Court is one of the biggest political issues confronting Prime Minister Paul Martin. In the next few weeks, he will have to fill two vacancies on the court, created by the recent departures of Madam Justice Louise Arbour, who left to become the United Nations High Commissioner for Human Rights, and Mr. Justice Frank Iacobucci, who retired early.

 

Currently, the job of appointing judges to the court rests with the Prime Minister, in conjunction with the justice minister, after consulting behind the scenes with legal groups and chief justices of the provinces from which a nominee comes.

 

Martin has promised to revamp the appointments process to make it more democratic and give MPs a greater role. By law, three seats on the nine-member court go to Quebec, while convention dictates that a certain number of seats go to other regions. (Ontario has traditionally held three.)

 

Those conventions could be changed so one or more seats go to aboriginal people rather than specific areas of the country, Harris suggested.

 

He noted that a paper accompanying the resolution, prepared for the Indigenous Bar Association by James Hopkins and Albert Peeling, makes the point that aboriginal people are not just another minority.

 

They have constitutional rights, and Canada's legal system is based on English common law, French civil law and traditional aboriginal law, Harris said.

 

 

But Sutherland maintains the "founding peoples methodology" is "no longer realistic."

 

"Canada is a multicultural country and, as best as possible, the bench, which includes the Supreme Court of Canada, should represent the multicultural nature of the country."

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