Indigenous, bilingual justices badly needed
We need to take steps now to ensure bilingual, Indigenous candidates for another justice are available next time
In 2017, the historic opportunity to appoint the first Indigenous justice to the Supreme Court of Canada in conjunction with the nation’s 150th anniversary came and went. As we move forward into a new year, it’s incumbent upon the Trudeau government to ensure that when the time comes to appoint the next Supreme Court judge, the result will be different.
Back in November, Sheilah Martin, a bilingual anglo-Montrealer, Alberta judge and former dean of University of Calgary’s law faculty, was nominated to the court to fill the vacancy left by Chief Justice Beverley McLachlin’s retirement.
By most accounts, Martin is an excellent choice. However, when it came to the reconciliation file between Canada and First Nations, there was a sense that Canada had rounded out the year on a disappointing note. The appointment reignited a national debate — and exposed underlying tensions — around the Liberal government’s criteria that Supreme Court of Canada justices be functionally bilingual in English and French, and whether this language requirement is hindering the appointment of an Indigenous person to the country’s highest court.
The Liberal government has made significant promises to Indigenous peoples, including a commitment to implement all 94 recommendations from the 2015 Truth and Reconciliation Commission. Ahead of the nomination process, there had been a great deal of hope that the new appointee would be Indigenous. When she wasn’t, Prime Minister Justin Trudeau faced significant criticism.
The failure to appoint a First Nations, Inuit or Métis person this time may not have been the government’s fault.
Reports indicate that none of the final three applicants on the shortlist put together by a screening committee chaired by former prime minister Kim Campbell was Indigenous.
It’s unfortunate, but perhaps not surprising. The pool of highly qualified Indigenous candidates is still relatively small, and not all who are qualified would have been interested in throwing their hats into the ring. Only one per cent of all Canadian judges are Indigenous. A Maclean’s article reports that of 997 applicants for judicial appointments made by Ottawa, between fall 2016 and fall 2017, just 36 were Indigenous.
The fact that regional representation is an important factor in naming judges to the Supreme Court narrows the field further.
At the same time, Canada is — officially, at least — a bilingual country. In order to ensure the proper functioning of the judiciary, Supreme Court justices must be bilingual. As has been argued, removing the bilingualism requirement “would effectively be consecrating English as the sole language” of the country’s highest court.
The Trudeau government would be well advised to develop a long-term vision for how to ensure that members of the up-and-coming generation of jurists, Indigenous and non-Indigenous, are bilingual. Addressing this challenge might include an intergovernmental approach to language learning among young students, given that educational policy is the responsibility of the provinces.
Increased efforts should be made to appoint more Indigenous judges to the lower courts — something that would be valuable for its own sake — and to provide them with additional language training so that they become fully bilingual in English and French.
Absent such strategies, the pool of potential Indigenous Supreme Court justices runs the risk of remaining limited, and linguistic duality will continue to be seen as an impediment to the reconciliation process.
In December, Raymond Théberge was appointed the new Official Languages Commissioner. The issue of language and indigeneity on the Supreme Court was raised during a parliamentary hearing for his confirmation process. Providing his nomination is confirmed by Parliament in the coming year, we can expect that this will be a key challenge during his mandate.
The current Supreme Court is a young body.
The next appointment isn’t expected to happen for some time.
But as we move into 2018, Canada should begin laying the groundwork so that when the opportunity to appoint another justice comes around again, there will be a strong pool of bilingual Indigenous candidates.