PM’s unique opportunity
The appointment of a new justice of the Supreme Court is always a moment of historic import. There are only nine, they serve until age 75, and their decisions touch the most vital issues of our lives.
But as Prime Minister Justin Trudeau mulls the shortlist of candidates now before him, he has a unique opportunity to make an especially profound contribution to legal history, to the future of Canadian justice and to the relationship between Canada and First Nations. It is time the federal government put an Indigenous jurist on the Supreme Court.
On the 150th anniversary of Confederation, the appointment of the first Indigenous justice to the country’s highest court would be a powerful symbol of reconciliation, a project Trudeau has put at the centre of his agenda.
More than that, it would better position the legal system to respond to a longstanding crisis in Canadian justice: the vast over-representation of Indigenous people in prisons and courts.
As Justice Minister Jody Wilson-Raybould pointed out last year, while they form about 4.3 per cent of Canada’s population, Indigenous people make up more than a quarter of prison inmates. In
some parts of the country, they are up to 33 times more likely to end up behind bars. No wonder 18 of the 93 calls to action from the Truth and Reconciliation Commission pertained to reforming our prisons and courts.
Adding an Indigenous perspective to the top court has the potential both to improve the quality of justice and to begin to build trust in communities that have long felt victimized by our legal system. As outgoing chief justice Beverley McLachlin, whose retirement created the current opening, once said, “Many people, particularly women and visible minorities, may have less than complete trust in a system composed exclusively or predominantly of middle-aged white men in pinstriped trousers.”
Some will surely argue that the candidate should be selected solely on merit, without regard for other factors. But when it comes to Supreme Court appointments, we already accept that other criteria matter. For instance, Trudeau instructed the advisory committee that composed the shortlist to choose only candidates who are functionally bilingual in English and French and only jurists from the West or North. But are the current conventions around regional representation really the best way to ensure the top court embodies the true diversity of our country?
Undoubtedly, the pool of highly qualified Indigenous candidates is relatively small. The benches of lower courts remain alarmingly white and male. Only 1 per cent of all Canadian judges are Indigenous — and only 3 per cent are people of colour. Our courts, at every level, should better reflect our population.
But as advocates have lobbied the government in recent months to select an Indigenous judge for the open seat on the top court, a number of apparently excellent candidates have emerged.
For instance, John Borrows, a renowned Anishinabe professor of law at the University of Victoria, is creating a program that blends the study of Indigenous legal traditions with that of the common law. He would bring a valuable new perspective to the court. Mary Ellen Turpel-Lafond, too, has been rumoured to be among the top candidates. The bilingual Saskatchewan Provincial Court judge, of the Muskeg Lake Cree Nation, spent 10 years as Representative for Children and Youth in British Columbia, where she was an outspoken and dogged advocate.
Whatever the government decides, it should not ignore the widespread desire to see an Indigenous person on the highest court. Ideally, Trudeau would deliver now. If not, he should at least explain why it was not possible this time around — and ensure that the circumstances are right when the opportunity next arises.
The benches of lower courts remain alarmingly white and male