An ill-judged idea
The Ottawa Citizen

There's something about race and ethnicity that makes otherwise sensible people lose their heads. Even the Canadian Bar Association isn't immune to this distorted thinking.

Next week in Winnipeg, the bar association will vote on a resolution calling for one seat on the Supreme Court to be reserved for an aboriginal judge. The resolution states that the current system of distributing Supreme Court positions recognizes the contributions to the creation of Canada and Canada's legal system of two of the "founding peoples," the French and the British. An aboriginal seat would simply acknowledge the third "founding people." It would also reflect the fact that Canada's legal system is founded on three basic components: English common law, French civil law and "Aboriginal law and customs."

If the facts were as stated in the resolution, this argument might well be sound. But in reality, the facts are not as stated and the argument is bunk.

While it is true that the current system reserves three seats for Quebec judges and divides the other six among the remaining provinces, this has nothing to do with recognizing the British and French "founding peoples." The positions for judges outside Quebec are distributed to achieve regional representation but are otherwise open to any qualified candidate regardless of ethnicity, which is why they have in the past gone to judges with such un-British names as Iacobucci and Laskin.

As for the Quebec positions, they are guaranteed because that province has a separate system of civil law over which the Supreme Court has the final word. The judges do not have to be francophone, however; in fact, one of the current Quebec judges is an anglophone Jew.

It is also not true that Canadian law is based on common law, civil law and "Aboriginal laws and customs." True, the Constitution affirms and protects aboriginal rights and treaty rights, but that no more shows that aboriginal laws and customs are part of Canada's legal foundation than the Constitution's protection of Catholic school rights shows our law is founded on the principles of the Catholic Church.

Most people think, wrongly, that aboriginal rights apply to all aboriginals. In fact, there are two categories of rights, the so-called "aboriginal rights" and treaty rights. The former are rights that vest in an aboriginal group and its descendants by virtue of having occupied and used the land before the current sovereign order was created. The latter are simply agreements made between aboriginal bands and the Crown. In both cases, the rights are held only by particular aboriginal groups under specific circumstances. They do not apply to all aboriginal individuals simply because they are aboriginal.

In other words, these rights are not based on race. And that makes them quite different from setting aside a seat on the Supreme Court based solely on a person's race or ethnic origin.

Over the last 20 years, the Supreme Court has shown that non-aboriginal judges are quite capable of upholding aboriginals' constitutionally protected rights because, in the end, what matters is the quality of the judge's mind, not the colour of his or her skin. May it ever be thus.

 The Ottawa Citizen 2004