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Liam Faught: Canada should appoint its first Indigenous Supreme Court justice

Commentary

Of the 115 people who have served on the U.S. Supreme Court since it was created in 1790, not one has been a Black woman. But with the closing of her confirmation hearings last week, and with at least two Republican Senators indicating their support, Judge Ketanji Brown Jackson is poised to become the first.“Republican Sens. Lisa Murkowski of Alaska and Mitt Romney of Utah said Monday evening they will vote to confirm President Joe Biden’s Supreme Court nominee, Ketanji Brown Jackson.” https://www.cnn.com/2022/04/04/politics/murkowski-romney-ketanji-brown-jackson-scotus-vote/index.html

In spite of the theatre, grandstanding, blatant partisanship, and plain absurdity that has come to define Supreme Court nominations in the U.S. (and make no mistake, the Senate judiciary committee hearings on Judge Jackson’s nomination have been no exception), this remains a momentous occasion for America, and especially for the millions of Black women who will soon see themselves represented at the highest level of the federal judiciary for the first time in American history.

In Canada, too, there will soon be a vacancy to fill on the country’s highest court. Several weeks ago, Justice Michael Moldaver announced that he will retire from the Supreme Court of Canada on September 1st of this year.“Supreme Court Justice Michael Moldaver will retire from the bench Sept. 1, ending a long judicial career that saw him sit on Canada’s highest court for more than a decade. ‘It has been an honour for me to be a member of this country’s highest court for the better part of 11 years,’ Moldaver said in a statement Thursday.” https://www.cbc.ca/news/politics/supreme-court-justice-michael-moldaver-1.6362803 This offers Prime Minister Trudeau the opportunity—for the fifth time during his tenure—to nominate an Indigenous justice to the country’s highest court for the first time in Canadian history, and there are several reasons why this would be the right decision.

First, diversity on courts helps them make substantively better decisions. The Supreme Court of Canada is composed of a panel of nine justices, and all nine hear nearly all cases brought before the Court and participate in deliberations. Diversity amongst the justices on that panel helps ensure that decisions are taken with a full appreciation of the various unique perspectives on the case at hand and of the consequences that will follow from the Court’s ruling. Canadian jurisprudence has shown that representation is of great institutional value to our legal system—particularly where fundamental rights and freedoms are concerned; legal restrictions on abortion, for instance, were only eliminated in the 1988 Morgentaler case after Bertha Wilson, the first woman to sit on the Supreme Court of Canada, had been appointed. She wrote a concurrence in that case that helped build the legal framework for reproductive rights jurisprudence in Canada.

Second, although cases involving Indigenous treaty rights, the concept of “Aboriginal title” and the status of Indigenous legal traditions vis-à-vis Canadian common law have preoccupied the Supreme Court of Canada for more than thirty years, there has not been a single Indigenous justice on the Court to participate in the adjudication of these cases. As Canadian courts continue to struggle with these issues and as new legal issues emerge (the horrific discovery of thousands of unmarked graves at residential schools last summer, for instance), the presence of an Indigenous justice will be more crucial than ever.

Finally, representation on the courts is a matter of legitimacy. For individuals to feel that institutions of government are legitimately empowered to adjudicate their rights and to shape the laws by which they are governed, they must see themselves represented in those institutions. Representation on courts encourages citizens to view both the process and the outcomes of trials as legitimate. Conversely, where representation is systematically lacking, confidence in the judiciary is diminished.‘Deck is stacked against us,’ says family of Colten Boushie after jury chosen for Gerald Stanley trial

This justification for representation is in fact already baked into the composition of the Supreme Court. Federal law requires the appointment of at least three judges who are familiar with the laws of Québec, by virtue of being either a judge or a lawyer in that province. The reason is not merely symbolic; Québec has a civil law system which is different from the rest of Canada, as well as unique legal and cultural traditions. Likewise, Indigenous communities have their own legal norms and traditions which have been explicitly acknowledged as having legal force in Canada.Pastion v. Dene Tha’ First Nation, 2018 FC 648 (CanLII), [2018] 4 FCR 467

Reflecting on the inauguration of Barack Obama in 2008, and the significance it held for racial equality in America, author Toni Morrison called it a “reclamation of the promise of what America believed about itself.” So what did America believe about itself? That it was a country where anybody, regardless of their race, could become President. But until that actually happened—until Americans could point to Barack Obama and say it was possible because it happened—the notion that a Black man could become President was merely that, a notion.

If Canada believes itself to be a place that truly promises multiculturalism, that foundational Canadian virtue, and if those in power are serious about reconciliation between Indigenous and non-Indigenous Canadians, then Indigenous representation in our highest civic institutions is simply a reclamation of that promise. If the law is to play any role in that project, then representation on the Supreme Court is an important first step.

David Clement: The federal government can help solve Canada’s housing crisis. Here’s how

Commentary

To say that Ontario, and Canada, are in a housing crisis would be a significant understatement. Headlines for months have shown that home prices are rising at record levels, which is quickly squeezing out a generation of young Canadians trying to buy a home.“The national average home price broke an all-time record in February 2022 as Canadian home prices continue to rise across the country. For February 2022, the average home price in Canada’s housing market was $816,720, up 20.6% from last year. Compared to last month, average Canadian home prices are up 9% from January 2022’s average home price of $748,439. Meanwhile, the MLS Benchmark Price increased 25% year-over-year to $869,300 for February 2022. That’s the highest year-over-year price growth that Canada’s housing market has ever seen.” https://wowa.ca/reports/canada-housing-market

How bad is the situation in Ontario? Really bad. The average sale price for a home in January nearly broke the $1 million mark, at $998,629, which is a 25.6 percent annual increase. In Toronto, the average home price saw a 28 percent year-over-year increase, with the median home selling for a whopping $1.242 million.

And the crunch isn’t just felt in Toronto. Brampton, Mississauga, Hamilton, London, and Ottawa have had their home prices inflate, year-over-year, by 41 percent, 30 percent, 35 percent, 31 percent, and 15 percent respectively. These record-high prices are largely driven by the fact that Ontario has a terrible record for building new homes. Canada ranks dead last in housing units per 1,000 people in the G7 with 424, and Ontario (which has only 398 units per 1,000 people) is a major cause of the problem.

The province needs to build another 650,000 units just to get to the Canadian average, which would still be well below France, which lead the G7 with 540 units per 1,000 people.“Among the G7, Canada has the lowest average housing supply per capita with 424 units per 1,000 people, which places the country behind the United States and the United Kingdom. France, by comparison, leads the G7 at 540 units per 1,000.” https://financialpost.com/news/economy/ontario-alberta-and-manitoba-lead-the-provinces-in-canadas-chronic-housing-shortage-says-scotiabank

Prime Minister Trudeau campaigned on the issue of solving the housing crisis, but much of the Liberal plan does little to impact the issue of chronic undersupply. The risk of course is the country’s affordability challenges get worse rather than better.

Take the government’s proposed ban on blind bidding for example. First off, this proposal does absolutely nothing to increase supply. And beyond that, it has faced criticism from housing economists. William Strange, a professor of economic analysis at the University of Toronto, explains that a ban on blind bidding wouldn’t reduce pricing to any meaningful degree and that “there’s no economic evidence that it would matter.”Fact check: Would a blind bidding ban lower housing prices? Professor William Wheaton at the Massachusetts Institute of Technology’s Center for Real Estate called the ban on blind bidding “dubious” because bidding wars are a symptom of an extreme seller’s market and not the cause. And remember the reason why Canada’s real estate market is so tilted in favour of sellers is that virtually every city has an undersupply of housing.

Two additional proposals from the federal government may make it easier for Canadians to save but similarly do nothing to increase the housing stock. The first is Ottawa’s plan to create a new tax-free First Home Savings Account, which combines the tax aspects of a TFSA and an RRSP, allowing Canadians to put upwards of $40,000 into their account, deduct the savings from their income, and withdraw it to purchase a home without any obligation to repay it. The second is to double the First Time Home Buyers Credit from $5,000 to $10,000.

While both policies should help some Canadians save more for a downpayment, they risk being undermined by the ongoing supply issues. At the very best these policies will help those with already significant housing savings get across the finish line.

So what should be done to address Ontario’s chronic housing shortage? A simple yet profound policy change would be to end single-family zoning. This refers to prohibitions on multi-family housing units or rules that set minimum lot size requirements, which ultimately end up limiting the number of housing units available in a city. A ban on single-family zoning would give property owners more freedom to build different types of housing and increase the housing stock.

Upwards of 70 percent of Toronto is zoned exclusively for single-family homes, which significantly limits building options and in turn constrains housing supply. The impact of these zoning rules can’t be overstated. A family in Toronto needs an annual income of $180,000 to purchase the median home and $130,000 to purchase the median condo. The problem? The median income for a couple in Toronto is only $97,640.Census families by family type and family composition including before and after-tax median income of the family

While zoning is ultimately a municipal issue, the federal government can still play a role. At minimum, Ottawa should be using the bully pulpit to talk about how restrictive zoning rules are the root cause of Canada’s housing crisis. More ambitiously, though, the federal government could quite easily tie federal funding for affordable housing and public infrastructure to density goals, with zoning reform as the core mechanism to achieve it. This would be broadly similar to the recent child care agreements which involve the transfer of federal dollars in exchange for a set of provincial deliverables.

The key point here is that the federal government ought reconceptualize its efforts to tackle the housing crisis. Rather than enacting policies that won’t increase the housing stock in any way, Ottawa should shift course and make zoning reform its key housing priority. That is what will ultimately cure Ontario’s housing woes.