Top court appointment raises awkward ironies
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.