The Indigenous legal community wants Prime Minister Justin Trudeau to reserve a permanent spot on the Supreme Court of Canada for an Indigenous jurist without regard for whether the person is bilingual in French and English, beginning with an appointment to fill a vacancy this summer.
Mr. Trudeau requires new appointees to the country’s top court be able to hear and discuss cases in both official languages. The court, created in 1875, has never had an Indigenous judge.
The Indigenous Bar Association, representing 333 registered and active lawyers, academics and law students, sent a letter to Mr. Trudeau and Justice Minister David Lametti, with several requests, including an expansion of the nine-member court.
“The IBA asserts that only an Indigenous candidate will be suitable for the next judicial appointment to the SCC,” the letter says. Justice Rosalie Abella retires on July 1.
The letter said increasing the number of judges should be accompanied by a mandate “that more than one member of the SCC bench is Indigenous – ensuring that the SCC bench is permanently representative of the people it serves.” (The president of the group, Drew Lafond, clarified in an interview that it wants one spot to start.) An expansion would require a constitutional amendment, with the unanimous approval of Parliament and the provinces.
The association also wants its own nominee on the seven-person advisory board that creates a short list of Supreme Court candidates for the Prime Minister. And it wants the bilingualism requirement for new appointees abolished.
Mr. Lafond said he and the association’s vice-president, Brooks Arcand-Paul, had a telephone discussion with Mr. Lametti in late January, and in late March, a phone call with Mr. Lametti’s judicial affairs adviser, François Giroux.
“They had no interest in talking about any of that,” Mr. Lafond said in an interview. “The engagement has been disingenuous at the end of the day.”
Mr. Lametti offered a different assessment in an e-mail to the association.
“The Prime Minister and I will carefully take your comments into account in upcoming SCC appointments processes,” he said in an e-mail to Mr. Lafond on March 17, and reiterated Mr. Trudeau’s assertion that no relationship is more important to the Liberal government and to Canada than the one with Indigenous peoples.
Quebec has three spots on the court under the Supreme Court Act, the law governing appointments to the court, in recognition that it has its own legal order, known as the Civil Code, and its own social values, and that Quebeckers need the three spots if they are to have confidence in the national court. By convention, Ontario has three judges, the West two, and Atlantic Canada one.
The association argues that Indigenous law has been recognized as a third legal order alongside the Civil Code and the English common law by the Supreme Court and other Canadian courts. Thus, it says, the court needs people who are of those legal orders, especially as major cases on Indigenous rights, treaty rights and land title unfold in the coming decades.
The 2016 census reported about 1.7 million Indigenous people in Canada.
“The lived experience of judges generally informs their approach in how they decide cases, and shapes the law in this country,” Mr. Lafond told The Globe. “The lived experiences of Indigenous peoples don’t have a voice on the Supreme Court of Canada.”
In 2016, the Trudeau government became the first to make bilingualism a stated requirement for new appointees to the country’s highest court. And this year, the government proposed to entrench that requirement in the Official Languages Act.
The Indigenous legal community calls the requirement the “paramount barrier” to reaching the Supreme Court.
“Indigenous candidates have dedicated years of intensive French-language study exclusively for the purposes of securing an SCC appointment application, only to discover that their proficiency was not sufficient,” the association said in a follow-up letter to Mr. Giroux last Wednesday.
To Mr. Lafond, Mr. Trudeau’s decision to add the bilingualism requirement is hypocritical and unconstitutional.
He likens it to prime minister Stephen Harper’s decision to appoint Federal Court of Appeal Justice Marc Nadon to the Supreme Court in 2013. No Federal Court judge had ever been named to any of the three spots reserved for Quebec.
The Supreme Court rejected Mr. Nadon as legally unqualified by a 6-1 count, and Mr. Trudeau, then opposition leader, said Mr. Harper showed a lack of judgment in carrying out one of his most important responsibilities.
That ruling had a lasting importance. The court declared for the first time that its basic features (such as the number of judges, the requirements to be appointed, and the court’s existence itself) are part of the country’s constitutional framework, and cannot be unilaterally changed by Ottawa. A unanimous vote of Parliament and the provinces would be needed to amend the Constitution, it said.
Mr. Lafond, citing that ruling, said: “Is that [proposed] amendment to the Official Languages Act constitutional? I would say categorically no. The Prime Minister knows that. That’s what makes this so reprehensible.”
Mr. Lametti, in his e-mail response to Mr. Lafond, said he is confident “there are exceptional Indigenous jurists who are able to meet this functional qualification.” He also said the Canadian Bar Association’s nominee on the advisory board is Osgoode law professor Signa Daum Shanks, who is Métis and a member of the IBA.
And in an e-mail to The Globe, Mr. Lametti’s spokeswoman, Rachel Rappaport, said the government “will take into account the case law” in developing a legislated bilingualism requirement “that is in line with constitutional considerations.”
Mr. Lafond said the chances are “very high, provided we can find the resources,” that the group will challenge the bilingualism requirement in court.
The Globe and Mail, April 21, 2021