Wait con­tin­ues for Indige­nous judge

Waterloo Region Record - - EDITORIALS & COMMENT - Chan­tal Hébert Chan­tal Hébert is a na­tional af­fairs writer. Her col­umn ap­pears in Torstar news­pa­pers.

It is a sign of the times that de­ci­sively mixed re­views at­tended Prime Min­is­ter Justin Trudeau’s lat­est Supreme Court ap­point­ment.

The qual­i­fi­ca­tions of Al­berta jus­tice Sheilah Martin had lit­tle to do with the some­what cool re­cep­tion. Her cre­den­tials are im­pec­ca­ble and the court will be richer for her con­tri­bu­tion.

She also fits Trudeau’s goals of a gen­der­bal­anced func­tion­ally bilin­gual top court.

But for the many who had hoped the Prime Min­is­ter would ap­point the first-ever Indige­nous Supreme Court mem­ber, the choice was a bit­ter dis­ap­point­ment.

Yet Trudeau did not pass over an Indige­nous can­di­date on the way to se­lect­ing Martin. A se­nior source told the Toronto Star none of the three ap­pli­cants who made the short­list drafted by a screen­ing com­mit­tee chaired by former prime min­is­ter Kim Camp­bell was Indige­nous.

Trudeau could have looked be­yond that list. But chances are he would have had to set aside ei­ther his gen­der par­ity ob­jec­tive or his bilin­gual­ism re­quire­ment or both to pro­pose an Indige­nous ap­pointee.

He might also have had to set­tle for a less ac­com­plished ju­rist. Camp­bell said the three can­di­dates whose names were sub­mit­ted to the Prime Min­is­ter stood headand-shoul­der above the other 11 ap­pli­cants.

Based on Martin’s ap­pear­ance in front of a com­mit­tee of par­lia­men­tar­i­ans on Tues­day, that as­sess­ment took into ac­count the can­di­date’s judicial track record, not just the de­mo­graph­ics of her pro­file.

Crit­ics of Trudeau’s choice be­lieve he should have short-cir­cuited the screen­ing process if that is what it took to ar­rive at an Indige­nous ap­point­ment. And some are ar­gu­ing the search for func­tion­ally bilin­gual judges is un­duly shut­ting out oth­er­wise qual­i­fied Indige­nous can­di­dates.

There has never been unan­i­mous sup­port for the no­tion that Canada’s top judges should be able to hear cases in ei­ther French or English with­out the as­sis­tance of si­mul­ta­ne­ous trans­la­tion. But this is a new twist on an old ar­gu­ment, and those putting it for­ward hail from un­likely quar­ters.

Un­der Jack Lay­ton and Thomas Mul­cair, the NDP has led the bat­tle to put into law the re­quire­ment that fu­ture Supreme Court jus­tices be func­tion­ally bilin­gual.

Over the last decade, that bat­tle has prob­a­bly done as much to put the party on the Que­bec map as its con­tro­ver­sial ac­cep­tance of the sim­ple ma­jor­ity vote as the ref­er­en­dum thresh­old to reach to trig­ger the prov­ince’s se­ces­sion process.

At a time when a ma­jor­ity of Que­be­cers is not in­clined to re­visit the in­de­pen­dence is­sue, most are more in­ter­ested in en­sur­ing their lan­guage rights are re­spected within Canada’s na­tional in­sti­tu­tions than in the con­di­tions un­der which they could leave the fed­er­a­tion. But in this Par­lia­ment, no MP has been as adamant about the need to re­lax the lan­guage re­quire­ments for Indige­nous can­di­dates to the top court as Que­bec’s Roméo Sa­ganash. The NDP’s lead­ing Indige­nous rights cham­pion has also ar­gued that the very no­tion of of­fi­cial bilin­gual­ism is a colo­nial one.

On the lat­est Supreme Court ap­point­ment, rookie NDP Leader Jag­meet Singh ini­tially sided with Sa­ganash, only to re­verse his stance in the face of a sim­mer­ing cau­cus back­lash.

On Tues­day, Trudeau’s pro­posed of­fi­cial lan­guages com­mis­sioner, Ray­mond Théberge, stunned many MPs when he told a parliamentary com­mit­tee he sup­ported the no­tion of a func­tion­ally bilin­gual Supreme Court bench in the­ory but that he had some dif­fi­culty with it in prac­tice.

Théberge said a fully bilin­gual court could be one that fails to re­flect Canada’s di­ver­sity.

But if it were ac­cept­able for the coun­try’s high­est court to shrug off the concept of Canada’s lin­guis­tic du­al­ity, what other fed­eral in­sti­tu­tions would sim­i­larly find grace in the eyes of the next of­fi­cial lan­guages com­mis­sioner?

The abil­ity of the mem­bers of Canada’s top court to func­tion in both of­fi­cial lan­guages is not a the­o­ret­i­cal concept. Ab­sent that abil­ity, the onus is on fran­co­phone lawyers to ei­ther ar­gue in a sec­ond lan­guage or to risk hav­ing the sub­tleties of their le­gal points lost in the trans­la­tion of­fered to the unilin­gual judges. Ditto for the French-speak­ing jus­tices as they com­mu­ni­cate in writ­ing or ver­bally with their col­leagues.

In prac­tice, that amounts to mak­ing English the sole work­ing lan­guage of the top court.

There is a large but frag­ile con­sen­sus be­hind Trudeau’s goal of an over­due rec­on­cil­i­a­tion with Canada’s Indige­nous peo­ples. That con­sen­sus crosses lan­guage lines. But it will be hard to sus­tain if the coun­try’s com­mit­ment to lin­guis­tic du­al­ity is cast as an im­ped­i­ment to that rec­on­cil­i­a­tion rather than treated as a fun­da­men­tal part of its di­ver­sity.


Jus­tice Sheilah Martin’s cre­den­tials are im­pec­ca­ble and the Supreme Court will be richer for her con­tri­bu­tion, Chan­tal He­bert writes. But Trudeau’s choice is a dis­ap­point­ment for those who had hoped for an Indige­nous pick for the top court.

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