Montreal Gazette

Indigenous, bilingual justices badly needed

We need to take steps now to ensure bilingual, Indigenous candidates for another justice are available next time

- CELINE COOPER

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.

 ?? SEAN KILPATRICK/THE CANADIAN PRESS FILES ?? Only one per cent of all Canadian judges are Indigenous.
SEAN KILPATRICK/THE CANADIAN PRESS FILES Only one per cent of all Canadian judges are Indigenous.
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