Top court ap­point­ment raises awk­ward ironies

Simcoe Reformer - Times-Reformer - - OPINION - PAULA SI­MONS psi­mons@post­

Sheilah Martin is a su­perla­tively well-qual­i­fied ap­point­ment to the Supreme Court of Canada. And yet, news the re­spected Calgary judge had been pro­moted to Canada’s high­est court from the Al­berta Court of Ap­peal was met in some quar­ters with anger and dis­ap­point­ment.

The rea­son has noth­ing to do with Martin’s legal track record.

Canada has never yet had a non­white mem­ber of its Supreme Court. Not ever.

There were high ex­pec­ta­tions that Prime Min­is­ter Justin Trudeau would ad­dress that im­bal­ance. When he appointed a white woman to re­place Bev­er­ley McLach­lin, who re­tires as chief jus­tice next month, he didn’t get praise for main­tain­ing the court’s gen­der makeup. In­stead, many felt he’d squan­dered an op­por­tu­nity to ap­point an Indige­nous judge. Or a black judge. Or an Asian one.

In truth, it is al­most un­fath­omable, in this mul­ti­cul­tural coun­try, we’ve never yet had a non-white Supreme Court jus­tice.

The irony is that Martin, 60, has ded­i­cated much of her ca­reer to fight­ing for the Char­ter rights of marginal­ized mi­nori­ties, and en­cour­ag­ing more diversity in the bar and on the bench.

In the course of Martin’s ca­reer, she’s been a crim­i­nal trial lawyer, a con­sti­tu­tional lawyer, a civil lit­i­ga­tor and a law pro­fes­sor who was just 35 when she was appointed dean of the Uni­ver­sity of Calgary law school.

Born in Mon­treal, the flu­ently bilin­gual Martin earned two law de­grees at McGill Uni­ver­sity, where she stud­ied both the English com­mon law and the French civil code. She also has a mas­ter’s de­gree from the Uni­ver­sity of Al­berta law school and a doc­tor­ate from Uni­ver­sity of Toronto.

In her legal prac­tice, she was a pow­er­ful ad­vo­cate, ne­go­ti­at­ing com­pen­sa­tion for the wrong­ful con­vic­tion of David Mil­gaard, ar­gu­ing and win­ning pro bono cases be­fore the Supreme Court on be­half of the Women’s Legal Ed­u­ca­tion and Ac­tion Fund, and the Al­berta As­so­ci­a­tion of Sex­ual As­sault Cen­tre.

She was also one of the ar­chi­tects of the In­dian Res­i­den­tial Schools Set­tle­ment Agree­ment.

As a judge, she’s han­dled a range of high-pro­file and con­tro­ver­sial files, in­clud­ing Canada’s first physi­cianas­sisted death case and the ap­peal in the Cindy Gladue mur­der trial.

“She’s blaz­ingly bright, amaz­ingly ar­tic­u­late and an awe­some au­thor who can ex­plain the most dif­fi­cult and tan­gled con­cepts in lan­guage we can all un­der­stand,” said Cather­ine Fraser, Al­berta’s chief jus­tice, when Martin was sworn into the Court of Ap­peal.

“I think her wis­dom and her com­mit­ment to Char­ter val­ues will cas­cade through­out the coun­try,” said Mary Moreau, the chief jus­tice of Al­berta’s Court of Queen’s Bench.

And yet there’s that irony. Equal rights and Sec­tion 15 of the Char­ter are Martin’s par­tic­u­lar area of ex­per­tise. She’s de­voted her ca­reer to fight­ing for diversity and in­clu­sion and so­cial jus­tice. Yet, now she’s in a po­si­tion where she’s seen as a part of the prob­lem of in­sti­tu­tional in­equal­ity at the high­est level.

“She’s go­ing to be a good Supreme Court jus­tice. That is clear,” said Eric Adams, a pro­fes­sor of con­sti­tu­tional law at the Uni­ver­sity of Al­berta.

“But there has never been a non­white per­son on the Supreme Court of Canada. I think that’s a prob­lem. The Supreme Court ought to re­flect and rep­re­sent the coun­try that it gov­erns at the high­est level of the law. An all-white court is just so far dis­tant from the real­ity of mod­ern Canada, in a way that should be dis­turb­ing for us all.”

Our court must change. Yet it’s un­fair to scape­goat Martin for all the “white” ap­point­ments be­fore her.

I think we can ap­plaud Martin — while rec­og­niz­ing that hav­ing an all­white Supreme Court in 2017 is a cor­ro­sive anachro­nism, an in­jus­tice for us all.

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