No Indigenous candidates on short list, source says,

OTTAWA— Justin Trudeau’s decision to name Sheilah Martin, a bilingual Alberta appeals court judge, to the Supreme Court of Canada Wednesday was a crushing blow to the hopes of many who expected the prime minister to appoint Canada’s first Indigenous judge to the top court.

But the Star has learned the shortlist presented by an independent advisory committee to Trudeau, which could have listed up to five names, contained only three recommendations — not one of which was an Indigenous person.

The stunning revelation was disclosed by a senior source with knowledge of the search, speaking on a not-for-attribution basis, who said of the three recommended candidates “none was Indigenous,” and that Martin was a “dazzling legal mind” whose qualifications “leapt off the page for everybody.”

Trudeau has unfettered discretion to make appointments and could have gone outside the list. Indeed, the insider acknowledged Trudeau, who has had two opportunities to elevate a judge to the high court since coming to power, had hoped to appoint an Indigenous person. But the source defended a process the Liberal government established to have an independent advisory committee undertake its search for top court judges.

It is led by former justice minister and prime minister Kim Campbell, whose work was described as thorough and “done incredibly well.” People wrongly assume everyone in the legal and judicial worlds want to come work at the Supreme Court of Canada, the source said, adding that’s just not true.

Martin’s nomination retains the gender balance on the high court at four women and five men. Once sworn in, she will take up Beverley McLachlin’s seat after the chief jus- tice’s retirement takes effect Dec. 15, but will have more than a month before the court’s winter session starts.

While across Canada, lawyers and academics welcomed Martin’s appointment and praised her talents, many were still dismayed, saying Trudeau failed to live up to his own government’s rhetoric about reconciliation with Indigenous people.

Lawyer Brooks Arcand-Paul, a spokesperson for the Indigenous Bar Association, said the group represents up to 300 practicing and nonpracticing lawyers, academics and researchers, and is “profoundly disappointed” in the decision, calling it a “great missed opportunity.”

“His decision neglects the importance and urgency of including Indigenous lawyers and judges and academics within the judiciary. The prime minister has said no relationship is more important to him than that with Indigenous people,” said Arcand-Paul, a 29-year-old lawyer who is a member of the Alberta and Ontario bars.

He said “speaking personally, I was not surprised. I’m so used to this government speaking in empty platitudes . . . not backed up by actions.”

Osgoode Hall law dean Lorne Sossin called it a “missed opportunity” for Trudeau. Gillian Calder, associate professor at University of Victoria, said Martin “is a fabulous appointment. But this was the moment; and there were extraordinary candidates” like her University of Victoria colleague, John Burrows, an Anishnabek man who holds the Canadian research chair in Indigenous law at the University of Victoria.

It would appear, however, that if Burrows applied, his name did not make it to the shortlist. Two other names reported by the Globe and Mail — Georgina Jackson and Mary Ellen Turpel-Lafond — were not in fact on the shortlist, the Star’s source said.