Pressure to name first indigenous Supreme Court judge could see Trudeau shaking up rules
Ian MacLeod, Ottawa Citizen and Jason Fekete, Ottawa Citizen | September 16, 2016 8:47 PM ET
OTTAWA — Pressure is mounting on Prime Minister Justin Trudeau to appoint the first indigenous jurist to the Supreme Court of Canada, even if it means retreating on the Liberal government’s commitment to appoint only functionally bilingual justices and discarding Atlantic Canada’s traditional seat on the high court.
Sources in the legal community say three women considered as potentially strong candidates include Mary Ellen Turpel-Lafond, Jean Teillet and possibly Naiomi Metallic. Newly appointed Sen. Murray Sinclair, a former Manitoba judge and the chair of the Truth and Reconciliation Commission of Canada, is also regularly mentioned as a strong choice.
An independent advisory board must submit a short list of three to five functionally bilingual candidates to Trudeau no later than Sept. 23. The board is part of a new selection process that introduced a nationwide call to qualified lawyers and judges to apply to replace Justice Thomas Cromwell, who held the court’s Atlantic Canada seat until his retirement this month.
Lorne Sossin, dean of Osgoode Hall Law School, said while he would support a nominee from Atlantic Canada or a functionally bilingual finalist, “it’s past time for an indigenous member of the court to be appointed. I’m confident that there are potential nominees who are either being identified or have identified themselves, that are before that committee, and I’m sure getting serious consideration as this process unfolds.”
If you have this panel of nine white judges staring at you, and you are having all of your rights adjudicated by those persons, how legitimate is that institution in your eyes?
The board has been instructed to support the government’s push for institutional appointments that better reflect the country’s social diversity. Indigenous peoples top the list of minority groups cited in its terms of reference and several aboriginal lawyers and judges are believed to have applied.
Turpel-Lafond is British Columbia’s Representative for Children and Youth and formerly practised law in Nova Scotia and was a law professor at Dalhousie University before being appointed the first aboriginal woman to serve on the Saskatchewan provincial court bench.
Teillet specializes in indigenous rights law with Pape Salter Teillet LLP, is past vice-president and treasurer of the Indigenous Bar Association and founding president of the Métis Nation Lawyers Association. She has extensive experience on Supreme Court cases. She is the great grand niece of Louis Riel.
Metallic is the first Mi’kmaq person to serve as a Supreme Court law clerk, specializes in aboriginal law, and human and constitutional rights. Fluent in French and English, she also is a professor at Dalhousie University’s Schulich School of Law.
Nader Hasan, lawyer with Stockwoods LLP in Toronto and an adjunct professor at the University of Toronto’s faculty of law, said the fact there has never been an indigenous judge on the Supreme Court — given our country’s history — “is a scandalous state of affairs.”
“The prime minister has to give priority to appointing an indigenous candidate,” Hasan said.
Regional diversity on the nation’s highest court is important, he said, but it’s time to abandon the regional quota system because it risks crowding out other important measures of diversity.
“It’s important for the legitimacy of the judiciary to have a court that reflects the diversity of the nation,” he said, noting the lack of an aboriginal judge on the top court “stands in the way of true reconciliation between First Nations and post-colonial Canada.”
Trudeau has pledged an ambitious agenda of reforms to improve the lives of Canada’s indigenous people.
He is not legally bound to appoint a short-listed candidate, nor does he have to abide by the convention that reserves one of court’s nine seats for a jurist from Atlantic Canada or that the person be functionally bilingual.
But as it stands, those constraints, especially on language, may be working at cross-purposes to the objective of generating the richest possible pool of candidates, say some legal observers.
“If you were to go for another Tom Cromwell again, I think it would ring a bit hollow for this government given its commitment to move away from what was seen as an overwhelmingly white and male set of appointments from the Conservatives,” Sossin said.
Robert-Falcon Ouellette, an aboriginal Liberal member of Parliament, hopes his government appoints an aboriginal and believes it is overdue.
“Its time has come. I’m sure it also would offer a greater level of expertise to the court,” said Ouellette, a Winnipeg MP. “I’m surprised we haven’t had one in this country.”
It’s important for the legitimacy of the judiciary to have a court that reflects the diversity of the nation
Lorne Neudorf, professor of law at Thompson Rivers University in Kamloops, B.C., suggests Trudeau may have painted himself into a corner.
“What you have is this great process, enhanced transparency, predictability that we’re going to get the best people, (but Trudeau) has perhaps imposed on himself criteria that may end up becoming a bit problematic in terms of winnowing down that pool where you find it difficult to please everyone or get the right appointment.”
Trudeau was asked Thursday about the looming appointment and whether the official languages policy is hurting the government’s ability to appoint more racial minorities and women to the bench.
He didn’t respond directly, but noted the government wants more diversity on the bench at different levels and in the top court.
“It’s not something we can suddenly do overnight. There is an awful lot of work to do in the lower courts, to be able to get the diversity up, to be able to get more women to the bench,” he said during an armchair discussion at the Global Progress Summit in Montreal.
“What we’re going to do with this new Supreme Court process is choose the absolute best possible Supreme Court justice to serve Canadians, and keep in mind that we want to make sure that we are representing as many Canadians with that court as we possibly can.”
