This week the Chief Justice, in a public speech, spoke out about Canada’s historical cultural genocide against its Indigenous peoples. The Globe has a story that includes the following snippet of quotes from me:
The Chief Justice’s speech was troubling for Emmett Macfarlane, a political science professor at the University of Waterloo. ”œWhat troubles me a little bit is that she and the court will continue to face cases where that historical perspective is deeply relevant to indigenous rights and land title claims.” He said the legal community is deferential to Chief Justice McLachlin to the point of ”œhero worship,” and unlikely to criticize her.
Like with any media interview on a complex subject, these comments are little decontextualized blurbs, so I thought it was worth explaining in a little more detail my perspective on this issue.
First, I generally agree with McLachlin’s comments, in terms of their substance. Canada needs to confront the historical – and more importantly, the ongoing – injustices it has inflicted on First Nations, Metis and Inuit peoples. My concern is about whether a sitting Supreme Court judge should be weighing in on these questions in a public forum when she knows full well the Court will continue to hear relevant cases.
And this isn’t just a matter limited to the Chief Justice recognizing basic historical fact (though I do think it’s unequivocally accurate to describe many aspects of the state’s historical treatment of Indigenous peoples as cultural genocide). There is a live issue at stake here, because some people argue that existing policies – from the continued existence of the Indian Act, the reserve system, the entrenched system of deprivation, systemic racism of the criminal justice system and on and on – mean that Canada continues to commit cultural genocide against its Indigenous population. All of these issues are bound up in the myriad Aboriginal and treaty rights cases (under section 35 of the Constitution) that the Court routinely confronts, and so that is the source of my discomfort with the Chief Justice giving a fairly political public speech, even if I happen to agree with the substance of her comments.
I would also note, that despite my personal views on the issue, the state’s cultural genocide has not, to my knowledge, been recognized by the Court as a matter of constitutional law or judicial notice of fact. A search for the phrase “genocide” in the Lexum database brings up 13 cases, none of which appear to be cases involving Indigenous peoples. So the Chief Justice has indeed weighed in on something that even as a specific issue may one day be settled by the Court.
For the Globe piece, I was also asked whether anyone in the legal community would agree with me that the Chief Justice’s comments were a bit “troubling” – the reporter, Sean Fine, noted I received some pushback on Twitter when I first articulated my concerns. It was in that context that I said the legal community suffers from a bit of “hero worship” when it comes to SCC justices. Legal academics are quick to dissect judicial decisions, but whenever it comes to anything the Chief Justice says or does in public, they are very, very quick to defend. There is, in my opinion, an extremely deferential posture from lawyers and legal academics when it comes to issues like this, and so that is where my “hero worship” comment came from.
I’m sure many will continue to disagree with me that the Chief Justice’s comments are problematic, but I think it’s important that we remember judicial independence is a two-way street. If the judiciary is going to be regarded as an impartial arbiter of complex and controversial political issues, then perception matters, and it may be unwise for judges to give public speeches on matters that have obvious relation to issues that come before them.