Sunday, August 29, 2010


The Supreme Court of Canada's recent decision in Ward allowing a lawyer whose Charter rights were violated to recover compensation without the prerequiste of proving bad faith or malice on the part of the state actor reminded me of that outstanding scholarly work written by John Porter entitled The Vertical Mosaic. In this scholarly work the late John Porter pointed out that the Canadian mosaic is stratified along racial/cultural and socio-economic grounds with some groups on the top and some groups on the bottom. Porter's groundbreaking work revealed that persons of Bristish origin are overrepresented among the elites.

The question that came to my mind after reading the Supreme Court of Canada's decision in Ward was this - if we assume that the late Professor Porter's theory is sound then it stands to reason that a study of the highest court's pronouncements on rights issues compared by the race/cultural background of the litigants should reveal a similar hierachy.

I am not a scholar. I am not a sociologist. I am a mere rights lawyer. Based on my personal observations and experiences I feel confident in stating the following hypothesis: the adjudication of rights in Canada is far from equal based on race/cultural and socio-economic backround and some groups are at the top and some groups are at the bottom in the same manner as pointed in Porter's Vertical Mosaic. Aboriginal-Canadians and African-Canadians are at the bottom. Canadians of British background are at the top. Some will be tempted to explain this away by pointing to socio-economic factors. Again, I feel confident in stating that even if one controls for socio-economic factors that the hypothesis stands.

A young scholar looking for something worhwhile to study would be wise to tackle this hypothesis. They could start with the Supreme Court of Canada and then the various provincial and federal courts of appeal. At the end their work will contribute to making things a little better for all !

Note: This piece is written for the sole purpose of encouraging debate on a matter of public importance.

Sunday, August 8, 2010


The recent decision by the Federal Court declaring Proposition 8 unconstitutional is yet another classic example of the utility and power of the U.S. Constitution when properly interpreted. The ruling is significant not only because it represents a move towards greater understanding and tolerance but - in my view - because it demonstrates that fundamental rights such as equality and the right to marry are rendered merely illusory unless they be subject to judicial scrutiny. The notion that such fundamental rights could be left to the electorate to decide will be judged by history to have been not only wrong but a cowardly attempt to appease gays and lesbians with an inferior right while preserving the full right of marriage for the broader population. To put it succinctly, the Federal Court's ruling soundly "outed" the shortcomings of that legislative enactment and in so doing those who supported it.

Ernest J. Guiste, Trial & Appeal Lawyer

Note: This commentary is written for the sole purpose of encouraging public discourse on an issue of public importance.