As we continue to reflect on how to put an end to anti-Black and Indigenous racism, we must examine our judicial system and determine the reasons it has failed to serve all Canadians equally. Most recently, Chief Justice Richard Wagner explained that the lack of diversity in the justice system is partly to blame. Although Canada’s judiciary has become more diverse, as a growing number of women, visible minorities and Indigenous people are issued a license, there is still a limited number of racialized judges across Canada. In fact, there has yet to be an Indigenous Supreme Court of Canada (SCC) judge. A note on the appointment process The procedure behind judicial appointments has often been kept from the public. It was not until 2016, that the Liberal government commenced an initiative to diversify Canada’s judiciary by rendering the selection process more transparent. The nine SCC judges are appointed by the Governor in Council pursuant to s. 4(2) of the Supreme Court Act (SCA). Requirements for the appointment process has been somewhat formalized to try and promote transparency. In a nutshell, an independent and nonpartisan advisory committee provides the Prime Minister (PM) and the Minister of Justice a short list of potential candidates, who then select a nominee. The nominee is then subjected to a hearing before a Parliamentary committee. Since the SCA is silent on the inner workings of the process, this approach was developed on an ad hoc basis in response to public concerns about lack of transparency. This process has not always been strictly followed. Admittedly, the transition from the traditional processes (whereby the PM appoints from a list of potential candidates, free of public scrutiny) to a public process (whereby impartial committees partake in selecting the candidate) shows signs of progress. However, mere transparency is not sufficient. The process must also be rigorous and consistent. Of the nine judges, the SCA requires that at least three shall be appointed from Quebec. Generally, the Governor in Council appoints three from Ontario, two from the Western provinces or Northern Canada and one from the Atlantic provinces. Apart from these general guidelines, the selection process is truly at the hands of the executive. This may sometimes create a tension between the need to uphold an independent judiciary system and government discretion. With little formalized requirements, the SCC selection process has rarely resulted in the appointment of racialized judges or led to the appointment of an Indigenous judge. Why is diversity important? There is an inherent contradiction when arguing for diversity on the SCC. If judges ought to remain unbiased, why should diversity matter? While all judges should aim to be impartial when hearing a case, it is evident that judicial judgement is not void of personal biases and prejudice. These underlying biases were formally recognized by the SCC in R v RDS (1997). In brief, the case concerned the arrest of a black 15-year-old who had allegedly interfered with the arrest of another youth. The police officer and the accused were the only two witnesses present, and their accounts differ greatly. In deciding that the accused should be acquitted, the judge at first instance took judicial notice that police officers often overreact, especially when dealing with non-white groups. The Crown appealed the decision, arguing that the judgment was biased, and the Nova Scotia Court of Appeal ordered a new trial. The accused appealed to the SCC. The SCC allowed the accused’s appeal and restored the acquittals, finding that there was not reasonable apprehension of bias. The dissent explained that such remarks were inappropriate in all circumstances and should never contribute to a judicial decision. The majority affirmed that courts should be held to the highest standards of impartiality. Decisions must be based on facts in evidence, not biased generalizations. However, the burden of proof for a judge to be found to have acted with reasonable apprehension of bias is high. It is particularly important to note the judgement delivered by four Justices (La Forest, L’Heureux-Dubé, Gonthier and McLachlin JJ). Unlike the rest of the majority who showed concern over the judge’s comments, these judges recognize that judges, while they must strive for impartiality, can never be neutral and purely objective. Instead, different life experiences and backgrounds appropriately assist judges in their decision-making process, so long as those experiences are relevant and not based on inappropriate stereotypes. It follows, therefore, that a diverse SCC bench would advance the court’s ability to develop judgements and resolutions tailored to the specificity of each case. The SCC must work toward improving its selection process and encouraging the appointment of racialized judges that would better reflect the multicultural Canadian population, given that judges of diverse backgrounds apply and interpret the law differently. For instance, Aboriginal communities have often voiced their concerns over the criminal justice system, finding criminal procedures alienating and ineffective in seeking appropriate redress. To have an Indigenous SCC Justice would mean consideration specific to Aboriginal traditional and cultural values. It is merely one way to help fix a system that presents an unending course of barriers and obstacles. This would truly allow our justice system to reflect the view of all Canadians. By Lucinda Chitapain
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We would like to thank our healthcare workers who have worked tirelessly to test, diagnose, and care for patients during this pandemic. This pandemic shaped the way our society looks, interacts and operates. While many are staying home, healthcare workers are risking their own safety for our wellbeing. But what about those individuals who choose not to abide by the rules of social distancing, wearing masks or isolating when returning from travel? The issue that arises is whether doctors have the right to refuse treatment to COVID patients that have been contributorily negligent. That is, patients who have voluntarily failed to follow public health guidelines. There are individuals who don’t believe that the pandemic is even real, whether it be because of the conspiracy theories, the lack of physical symptoms unlike the bubonic plague or the privilege of not knowing anyone who is battling with the disease. Some of these individuals engage in self-destructive habits. It can be seen through protests on the TTC where individuals have proclaimed they do not want their body to be regulated by the state and that masks hinders their freedom of expression. I ask these same individuals who went to school here, dress codes were also enforced – where was this energy when children weren’t allowed to wear spaghetti straps to class? Another example is Bill 21 in Quebec, banning religious symbols such as the hijab, niqab and turbans. The freedom of expression argument is an interesting take, is it more important than the right to life, liberty and security of the person? Wearing a mask has a utilitarian purpose, protecting individuals from spreading the virus to one another. If healthcare workers can wear it for hours a day, we can wear them for limited time periods, when leaving our homes to run errands or going to work. The way COVID-19 impacts individuals differ greatly based on their immunity levels. While some can overcome it without knowing they even had it, others require ventilators to breathe and have reduced lung capacity once treated. Since there is no one cure fits all approach, the spectrum of treatment varies in costs, treatment time and resources. Labour boards across Canada have outlined a four step test to justify refusal to work because of unsafe or dangerous conditions:
However, the situation is different for healthcare professionals given the nature of their work. Doctors have a mandate to help the ill. Healthcare professionals cannot dictate how patients live their lives, nor can they withhold treatment based on the disparity in standards of morality. Physicians are not in the position to determine when self-destructive behaviours warrant treatment. If this were the case, healthcare professionals could refuse cases related to smoking, eating disorders or sports injuries since it could be argued that is “self-destructive” behaviour. Doctors are expected to provide equal treatment for all, without their biased judgment and projected complications. The difference between those cases, and COVID-19 is the risk of contracting the virus. Healthcare professionals are putting themselves, their families and others in close proximity at a heightened risk of infection because it is unknown how this disease is spread. Regardless, the code of ethics highlights that the patients’ welfare be placed above their own self-interest. How can it be monitored if a patient was negligent? Would specific measures need to be in place to assess if they broke by-laws such as congregating with more than 10 individuals? Went shopping without a mask? Should it be that people need to surrender their health card if they break a law to say that they are willing to risk everything, their health included to live a lifestyle that cannot be supported at this moment in time? As a member country for the World Health Organization (“WHO”), Canada is committed to providing healthcare for every human being without distinction of race, religion, political belief, economic or social condition. Therefore, physicians in Canada owe a legal duty of care to patients and there is a limited right to refuse the work based on the four step test identified by the labour board. By: Karen Randhawa |
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