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Supreme Court's Chief Justice Forgets Diversity

10/02/2013 12:16 EDT | Updated 01/23/2014 06:58 EST

The Supreme Court of Canada (SCC) is the highest court of Canada and the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts. Its decisions are the ultimate expression and application of Canadian law and binding upon all lower courts of Canada.

The institution was created in 1875, a few years after Confederation. The SCC has always included Quebecers, as a show of respect for the bicultural nature of the bilingual country on which the court rules. Today, Quebecers remain well-represented in the highest court of the land, even with the much decried appointment of unilingual Anglophone justices.

The latest SCC appointment by PM Stephen Harper has ruffled a few feathers around the country. PM Harper faced criticism last year when he named Richard Wagner to replace Marie Deschamps on the court.

With Wagner's appointment, it came down to three women, six men -- not the "visionary" image reflected in Claude Le Sauteur's depiction on a Canadian stamp that chief justice Beverley McLachlin once hailed.

There had been talk about a woman being chosen to foster a gender balance in the top court this time around. These calls fell on deaf ears as Judge Marc Nadon was named to the SCC this week.

NDP Leader Thomas Mulcair commented on this appointment: "This is the highest court in the land. And that has to reflect the population." It seems that Chief Justice Beverley McLachlin has a different view: the judge who presides over the SCC was quick to point out that the "Supreme Court ought to reflect the graduation rate of law students across the country."

So which is it? Is the Supreme Court supposed to mirror the people it is appointed to serve, or a narrow reflection of one particular field of study?

As the nation's top Justice, Beverley McLachlin's words serve as another dagger in the heart of diversity and the ideals of multiculturalism our leaders claim to espouse to. In an exclusive interview with CBC chief correspondent Peter Mansbridge, the obvious questions around the full spectrum of diversity must have slipped his mind. As many "equality discussions" tend to.

THE CAT IS OUT OF THE BAG

Madam Chief Justice is all in favour of gender parity. She goes on to quantify her desire for women to join her on the highest court of the land at 50%.

"I think the court should be representative of society, and of course, one hopes that women will," Chief Justice McLachlin said.

No mention of including minorities in this "representative society". Canadians of non-European ancestry are rendered invisible minorities in this dichotomy, even as they number over 6 million.

"We should have a number of women on the court, and we do. I'm glad we have them. I think it adds to our credibility and insights that we bring to different problems," Chief Justice McLachlin said.

As women are credited with adding credibility to the institution, minorities, which are much further behind in the equity scale, aren't even part of the conversation. Therein lay the underpinnings of the feminist movement, as outlined by the worldwide #SolidarityIsForWhiteWomen hashtag explosion of summer 2013.

If you were on Twitter [in August], you may have seen a lot of rallying around the satirical but serious hashtag #solidarityisforwhitewomen. It was an unlikely trending topic, but it served as a high-profile digital example of one of feminism's most enduring internecine tensions -- how or whether to make space in the world of feminism for people who aren't white (or upper middle class or straight or able-bodied).

As Canadians who make up the image of a colourful mosaic increase to over 20 per cent of the population, what does it say that the "credibility and insights" they bring is not even an afterthought for the Chief Justice of Canada? The main concern, both from the mainstream media and Chief Justice is solely relegated to an X chromosome.

This narrative has plagued a number of Canadian institutions, including the Senate and the House of Commons. When Harper's mid-term cabinet shuffle was announced, he touted rising the number of women in cabinet. No consideration or commentary was given to the chronic underrepresentation of people of colour. Visible minorities are left to read between the lines.

A year earlier, the Bank of Canada showed disdain for an Asian-Canadian woman's features being revealed on a bank note, preferring an ethnically cleansed depiction they described as "neutral ethnicity" -- meaning white. Even Status of Women's annual commemoration of women's suffrage turns a blind eye to the large number of Canadians who didn't win the right to vote in the 1929 (partial) judicial victory.

"Admittedly, this isn't a new problem: white feminism has argued that gender should trump race since its inception," Mikki Kendall wrote at The Guardian. "That rhetoric [...] alienates many from a movement that claims to want equality for all.

The current configuration of the Supreme Court of Canada (and the Federal court of Canada) shows contempt for 1 of 5 Canadians, and Aboriginal peoples as well. Multiculturalism remains elusive where it matters most -- an ironic anti-tribute to the "just society" articulated by Pierre E. Trudeau so long ago. While Chief Justice McLachlin's naked quest for gender parity will serve to reinforce solidarity among fair skinned members the fairer sex, genuine equality and fairness lie in waiting.