affirmative or democratic action?

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We have repeatedly argued that potential candidates for the Supreme Court of Canada should be chosen on merit, not race or ethnicity, and should be subject to a higher degree of scrutiny than they have been in the past -- or will be under the government's proposed judicial selection reforms. It now turns out that Supreme Court Justice John Major essentially agrees with us.

In an interview this week, Judge Major told CanWest News service that he does not believe the spectre of public hearings or private interviews would scare off good judicial candidates: "I don't think very many people would be deterred unless they had some skeleton they were afraid of." This effectively destroys the federal government's justification for not requiring potential justices to undergo a vetting procedure.

Judge Major did not stop there. He had some other sage advice for the government: "Appoint the most qualified person." He added that any appointment to the Supreme Court of Canada "has to be absolutely on merit." If his advice is respected, this would put an end to the lobby for creation of a designated aboriginal seat on the Supreme Court.

Strange as it may sound, the idea of making high court appointments on the basis of race or ethnicity has enthusiastic supporters. Ethel Blondin-Andrew, the Minister of State for Northern Development, started vocally making the case for the next judicial appointment to be an aboriginal in February. Around the same time, Justice Minister Irwin Cotler emphasized that he wanted to see "qualified people amongst the aboriginal community" get "serious consideration" for the next judicial vacancy. We would hope the Minister would want to see qualified people of any race or ethnicity get "serious consideration."

The high court is already held in suspicion by some people because of an unacceptably opaque and undemocratic appointment process. The last thing we need is to extend this folly to the practice of ethnic profiling. It is encouraging to learn that a veteran of the court concurs.

-- Editorial, National Post (2005/06/17)

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15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

15. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
R.S.C. 1985, App. II, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11.

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to paraphrase a line from Harvey Fierstein's 1987 play Forget Him, "I have never made an attempt to be contrary either in my ethnic background or the non-performance thereof... I am simply the seed sown and grown of the nourishment provided"...

i've never cared much for "playing the race card"... while i've attended various focus groups addressing the challenges facing individuals who belong to "equity-seeking" groups, i've usually found it galling that someone could assert entitlement to certain things simply by virtue of their ethnicity, religion, sexual orientation, etc... pretty ironic considering that i could probably claim a lot under most of those banners... but somehow, i've always considered "affirmative action" as condescending, as if to say "if we didn't have to meet a quota, you wouldn't be considered good enough"...

i'm idealistic about a lot of things... i would like to believe that this is a meritocracy, that determination and hard work pay off, that natural talents and abilities should see one through, that "the cream rises to the top"... as the editors of the Post wrote, i would want to see qualified people of any race or ethnicity get "serious consideration"...

but i suppose that's not always the case...

the argument advanced by intellectuals like the Hutch is that this is a matter of democracy, and not just another case of using the language of "rights" as a trump card... it would be naïve of us to insist that judges are doing nothing more than applying the law and interpreting the Constitution when they tackle controversial public policy on social and moral issues... insofar as judicial interpretation affects the lives of ordinary Canadians, those who wield such power – as any body exercising such influence over public policy – ought to be answerable to the people... and not just "answerable", but "representative"... after all, democracy is supposed to be for the people and of the people...

so while i would still hesitate on "self-identifying" as a minority merely to improve my job prospects (and generally disagree with "rights"-talk as the be-all and end-all of public policy debates), i think there's something to the idea that any powerful institution or organization -- be it public or private -- should operate on democratic principles... with all due respect to the Honourable Justice Major, there's a reason why those of his ilk are being or should be phased out... maintaining a wilful blindness about the inaccessibility of justice for groups and individuals of minority status -- especially the First Nations people of Canada -- demonstrates how disconnected people in power tend to be from the reality of the status quo...


"The Supreme Court justices have strenuously denied that they are intruding into the political sphere. Yet, the impact of their decisions has been politically strategic in a most profound way. It demonstrates that, as important as the Charter is to society, who gets appointed to the judiciary and the Supreme Court is even more important." -- Errol P. Mendes

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