Advocates for native or minority Supreme Court judge disappointed by PM’s choice

HALIFAX — The Liberal government may have made history by nominating a Newfoundlander to Canada’s top court — but disappointed advocates say a more critical opportunity has been missed to add racial diversity to Canada’s predominantly white judiciary.

“It’s another white male … It’s the exact thing we’ve been doing for years,” said Koren Lightening-Earle, president of the Indigenous Bar Association, adding she would have been “borderline happy with any person of colour.”

Prime Minister Justin Trudeau announced Monday that Justice Malcolm Rowe from Newfoundland and Labrador has been nominated for the Supreme Court of Canada. If formally named to the court, it will be a historic first for the province.

However, scholars and aboriginal jurists had hoped Trudeau’s new selection process might set aside the constitutional convention of regionally based appointments, and focus on putting an aboriginal or black judge into the job.

Lightening-Earle said while Newfoundlanders and Labradorians have waited a number of decades for a representative on the court, aboriginal Canadians have deeper historic claims to a place in the judiciary.

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“They (Newfoundland and Labrador residents) have been waiting a long time, but we’ve been waiting a little bit longer,” she said.

Lightening-Earle said in a telephone interview a rare opportunity has been missed, and indigenous lawyers are wondering why they bothered applying to the government’s advisory board for the position. 

A report in Policy Options magazine estimated earlier this year that just one per cent of Canada’s 2,160 judges in the provincial superior and lower courts are aboriginal, while three per cent are racial minorities — prompting a Dalhousie University law professor to describe the Canadian bench as a “judiciary of whiteness.”

Robert Wright, a black social worker who has served on a Nova Scotia board that recommends judicial appointments, said the announcement is a disappointment given the Trudeau government’s earlier signals it might adjust the system.

“There are an increasing number of Canadians who … are not caught up in what I call the historical regional nature of the various Canadian identities we used to focus on,” he said in a telephone interview from Halifax.  

Wright argues the principle of diversity that lies beneath appointing people from different regions needed to be shifted to recognize the increasing number of Canadians from diverse ethnic and racial backgrounds.

He said as a black Nova Scotian he would have been content to see a black person from any part of the country elevated to the bench, and he also would have been very pleased if an aboriginal judge was appointed.

Wright and Lightening-Earle say the country is losing out on the opportunity to gain from indigenous perspectives on everything from constitutional issues to sentencing to the factors that lead to crime.

Jeffery Hewitt, a legal scholar at the University of Windsor, said he doesn’t accept arguments that there may be a lack of qualified candidates.

“Tell us who applied. Give us the list. Talk to us about … whether there were any indigenous people in there?” said Hewitt, a Cree who has provided legal advice to First Nations.

A spokeswoman for the federal Justice Department said the independent advisory board that recommends candidates to the prime minister’s office “will be reporting on this information one month from (an) appointment.”

Hewitt said he’s hopeful that going forward, the Liberals will make more appointments to the superior courts in the provinces.

In Quebec, the Policy Options study noted three visible minority judges out of more than 500, despite bar society figures showing more than 1,800 of its roughly 25,000 lawyers identify themselves as being from visible minority groups. The province said it doesn’t keep figures.

In Ontario, one of the few provinces where the judicial advisory body keeps figures on the lower court appointments, there were 24 visible minority judges out of 334 judges, even though one quarter of the province’s overall population identifies as a visible minority.

There are no visible minorities on the bench in Newfoundland and Labrador, which by constitutional convention was the likeliest province to be tapped for the next Supreme Court of Canada appointment.

Rowe, who was first named a trial judge in 1999 and has been a judge of the provincial court of appeal since 2001, replaces Justice Thomas Cromwell, previously a Nova Scotia Court of Appeal justice, who retired Sept. 1, 2016.

His legal work in private practice and on the bench has included constitutional matters, foreign relations, the arbitration of maritime boundaries, and the negotiation of conventional law through the United Nations.

Rowe says he is fully bilingual, a qualification which the Liberal government said was mandatory for the appointment.

MP and senators will have a chance to question the nominee on Oct. 25.

Follow @mtuttoncporg on Twitter.

Michael Tutton, The Canadian Press