Febuary 2, 2001 Halifax Herald

Supreme Court Justice displays partisanship

A story by Cristin Schmitz, published in the January 19, 2001, issue of The Lawyers Weekly, relates many impartial responses by Supreme Court of Canada Justice Michel Bastarache to questions she posed to him about aboriginal and treaty rights. Before suggesting how he should be dealt with, I'll respond to the six statements attributed to him by Schmitz that I've listed below.

1. "I think the court is not the right forum for determining how the native rights will blend in with other rights of citizens in the country, and with citizenship and all of those other issues."

When reading this statement, one is left wondering if he recognizes Canadian citizenship for First Nations People. If he does, using "non-native rights" would have been more appropriate than "other rights of citizens." What he means by "blend in...with citizenship and all of those other issues" escapes me.

2. "I wish there was a way in which most of these things could be determined through negotiation because I don't really believe the court is going to be able to be the final arbitrator in that area."

I agree that negotiations are preferable to litigation. But so far, both federal and provincial governments have declined to do so in good faith. When they do agree, and demonstrate sincerity by constructive deeds, there won't be any more cases such as Marshall. In the meantime, First Nations will continue to ask the court to be the final arbitrator. This is our right as citizens; it cannot be compromised.

3. Although Bastarache didn't participate in the deliberations of the Supreme Court of Canada when it considered the Marshall appeal, thus not hearing arguments first hand or reviewing thousands of documents, he commented about its 5-2 favourable Decision: "I myself didn't agree with the majority decision."

This leaves me baffled. Usually, a judge doesn't offer commentary about an issue that he or she doesn't have full, intimate knowledge about. As a justice who didn't participate, his right to comment was very limited.

4. "The first reaction of the public, especially in the Maritimes, is that the court was very result-orientated and was inventing rights that weren't even in the treaties that were brought before the court in that case."

That is very selective comment based on radical statements made by vested interests. As part of the public, which I assume he recognizes we are, First Nation Peoples were fully supportive of the decision. Further, so were a great many non-First Nations People, perhaps the majority.

5. "The second problem, I think, was also that the court was maybe seen as being unduly favourable to the native position in all cases, and that it sort of has an agenda for extending these rights, and that it has no concern for the rights of others."

This conclusion was the same made by the radical element. I don't believe that a Supreme court Justice has any business making such a one-sided public statement.

6. "I think the court has to be seen to be entirely fair in its determination of legal issues where the social consequences and economic concerns are very important... Especially in this situation, where you have fishermen who are not very wealthy in the Atlantic and who have had very serious problems and whose rights might have been overridden by the rights of natives too easily by the court."

His statements indicate strongly that Bastarache is blatantly partisan. He completely ignores the rights of the Mi'kmaq defendant, while espousing the rights of those otherwise affected. On the other hand, I believe that the court majority did, when deliberating, take into consideration the fact that our people were mostly very poor and were still being excluded from participating fully in the fishery by racially motivated biases. Thus, it decided to open it up for our fishermen.

Respect for decisions of Supreme Courts in a democracy is a must if democracy is to prosper. This is especially so when its decisions force the majority to give an equal share of opportunities to an underprivileged minority. In Marshall, the Supreme Court of Canada did what had to be done to assure justice.

My criticism of Justice Bastarache is not an attempt to try to muzzle free speech. I would be willing to defend that right to the end. However, there are offices of trust in this country that require that the occupant, during tenure, to keep silent; the Supreme Court is one of them. If a Supreme Court Justice feels a moral need to vent personal choices and preferences, then he or she must exercise the only option open: resign. This is the only way that public confidence in such institutions can be maintained. Partisanship, even a whisper of it, is not an option open to such an individual.

By making the before-mentioned statements, Justice Bastarache has crossed the line and abandoned impartiality. Because of this, how could any native person in this country ever feel that a case he brought forth would receive fair consideration from a court Justice Bastarache sits on? I strongly recommend that the Canadian Judicial Council become involved and review the matter in its entirety. In the meantime, Justice Bastarache should refrain from hearing any cases that pertain to aboriginal and treaty rights. Actually, it should be permanent.

Canadians should ask themselves: Would such conduct by a Supreme Court Of Canada. Justice be tolerated if it involved non-First Nations People?

Daniel N. Paul


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