Identity politics in the SCC (from the Eye of the Newfie Beholder)

In June, Donald Trump claimed that U.S. District Judge Gonzalo Curiel, who is overseeing a lawsuit against the now-defunct Trump University, was biased because of his Mexican heritage. 

Curiel, who was born in Indiana, also holds a membership in a Latino lawyers association. Trump alleged Curiel was in conflict with Trump’s positions on illegal immigration and a promise to build a wall between the U.S. and Mexico. Specifically, Trump said to CNN, “He’s a Mexican. We’re building a wall between here and Mexico.”

Trump specifically denied his comments were racist. He commented to Fox News, “All I’m trying to do is figure out why I’m being treated so unfairly by a judge.”

As Rex Murphy commented, “Identity politics is an instrument of division and a stew of contradictions.” On the one hand, some believe “a wise old man and a wise old woman would reach the same conclusion when deciding cases.” On the other hand, as U.S. Supreme Court Justice Sonia Sotomayor commented, “Whether born from experience or inherent physiological or cultural differences . . . our gender and national origins may and will make a difference in our judging.”

I think both these statements, while contradictory, are true. In some cases, two wise people, no matter what their differences, will make the same decision. There are plenty of unanimous decisions from appellate courts to support that. In other cases, appellate judges disagree. In some of those cases, certainly, the background of the particular judges (their personal beliefs, culture, ethnicity, race, sex, gender, sexual orientation, language — even their hobbies) likely influence their perspectives.

Diversity on the bench is universally accepted as being important. It’s not necessarily that a black woman’s perspective is better than a white male’s, it’s just that society needs a variety of perspectives on the bench to balance the biases out and, ultimately, make better decisions.

The Supreme Court of Canada is made up of the chief justice and eight puisne justices. The Supreme Court Act stipulates that at least three of the judges be appointed from Québec. Traditionally, three judges are appointed from Ontario, one from the Maritimes and two from the Western provinces. Western Canada certainly has reason to complain — it makes up 31.6 per cent of the population, which is much greater than the 23 per cent represented by Québec. Of course, Québec also is the only civil law province. So, at the SCC, you have a third of the judges who may not even have any common law experience, which applies to 73 per cent of the population. 

As for Newfoundland and Labrador, we have never been represented on the SCC. While part of Atlantic Canada, the province is not part of the Maritimes (which includes New Brunswick, Nova Scotia and Prince Edward Island). Let me say that again: Newfoundland has never had a representative on the SCC. How would Québec (or Ontario or Alberta) feel if there had never been an SCC appointment from that province . . . EVER?

It’s obvious that Québec feels strongly that regional representation is important — why else would the Supreme Court Act mandate it? Ensuring the whole panel of judges can be informed about regional differences seems to be collectively agreed on as a good idea.

At a time when an appointment from Newfoundland and Labrador is long overdue, the federal government has suddenly changed the rules. To make matters worse, Prime Minister Justin Trudeau decides to write a piece in The Globe and Mail outlining the changes to the SCC selection process — a paper that has not been available in print in Newfoundland since 2013. The changes invite applications from “fluently bilingual” candidates from all over the country. A bilingual requirement is not present in the Supreme Court Act and has not existed for 150 years. 

There simply is no issue of francophone Canada, or Québec, being underrepresented at the SCC. Nor is there a problem of a francophone litigant being able to appear in his/her language. A quorum consists of five judges. Even without the availability of qualified legal translators (of which there are plenty), as long as five judges are bilingual then this is a non-issue. 

The whole basis for human rights laws in this country is to prevent employers from adding unfair requirements to holding jobs that are unrelated to the person’s actual ability to do the job. The federal government would have a hard time establishing that being “fluently bilingual” is a bona fide occupational qualification for an appointment to the SCC. I’m not even sure what “fluently bilingual” means — I know a lot of people who are able to speak great conversational French, but this does not necessarily mean they understand complicated legal terms that would be at issue before the SCC.

Unfortunately, many of our NL jurists did not grow up in the same environment as Trudeau and didn’t have the same opportunity to learn, study and practise French. However, the perspectives they obtained from their experiences (their identity politics) are just as important in a country as diverse as Canada. 

Let me be clear, I love the fact we live in a country with two official languages. However, let’s not lose sight of the forest by focusing too hard on one tree. Canada is made up of many wonderful trees and let’s make sure we recognize them all.

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