Focus On

Indigenous jurist should head the line, advocates say

Thursday, May 12, 2016 @ 8:00 PM | By Cristin Schmitz

Appointing the first indigenous judge to the Supreme Court’s impending vacancy should be a top priority — more important than that the next judge hails from the Atlantic provinces or is fluent in French, advocates say.

With the Sept. 1 retirement of Nova Scotia’s Thomas Cromwell, the Liberals can make enormous symbolic and substantive progress in implementing their vow to reconcile with Canada’s indigenous peoples by at last naming an eminent indigenous jurist to the top court, say lawyers who have lobbied for the historic appointment for more than a decade.

“The time is now,” said Dianne Corbiere of Nahwegahbow, Corbiere, a First Nations law firm in Rama, Ont. “We’ve been advocating for inclusion of an indigenous jurist [at the Supreme Court] for a long time, and I think that that should take a bigger priority to: ‘Oh, does the East Coast miss out?’…I think you’ve got to weigh what’s important, and there are already a lot of jurists across Canada that are bilingual, but there are no [full-] indigenous judges now at any appellate level.”

The top court’s vacancy would traditionally be filled by a judge or lawyer from one of the four Atlantic provinces — a region that has few indigenous jurists with a national profile, let alone those who read and understand French (with the notable exception of Judge Mary Ellen Turpel-Lafond, who practised law in Nova Scotia before she joined the Saskatchewan Provincial Court).

The Liberals have also drastically narrowed the pool of both indigenous and non-indigenous candidates available to replace Justice Cromwell by pledging during the election to appoint only bilingual jurists.

Corbiere stresses, “They also made a campaign promise to us…that they’re going to reconcile with indigenous nations.”

She added: “So if you have to look at the competing priorities, they’re going to have to decide. And I wouldn’t want him to choose someone in this category just because they could speak French, because that’s not the priority. There are some people that have some indigenous heritage, but they’re not actively immersed in their indigenous teachings and knowledge of indigenous law…I’m not asking for a race-based appointment. I’m asking for a meritorious appointment, and that means that they have to have knowledge and connection with indigenous communities and the indigenous laws. ”

Alberta lawyer Koren Lightning-Earle, president of the Indigenous Bar Association, agrees “the time is right” given the importance of implementing the recent recommendations of the Residential Schools Truth and Reconciliation Commission (TRC) and the important cases the top court and lower courts are regularly confronting that affect indigenous rights and all Canadians — whether in the areas of land claims, child welfare, resource development, or criminal law. “It’s very apparent that indigenous people play an active role in the judicial system, and I think we need that active role to be recognized, and we need to have an active role in all levels of court,” Lightning-Earle told The Lawyers Weekly. “I don’t think [language and region] should be impediments to appointing an indigenous judge now,” she said. “I think we need to look at what is the best for Canada.”

If the government wants to expand the top court’s diversity, and enrich its perspective on indigenous law and cultures, by appointing an indigenous jurist with the stature of TRC ex-chair Murray Sinclair — who has some ability in French but is not fluent — it has some room to manoeuvre on that front, said University of Ottawa professor Sébastien Grammond.

Grammond advocates that Supreme Court judges must be able to hear oral arguments without simultaneous interpretation, because factums and other materials in French aren’t translated and it is impossible for interpreters to perfectly convey the arguments.

Yet he allows “there could be some flexibility…through a commitment that the judge in question will be able to hear, perhaps after a few months [of language training], arguments in French.”

When contacted by The Lawyers Weekly, indigenous jurists and Aboriginal law practitioners and academics repeatedly mentioned a handful of names as leading candidates: Sinclair, Turpel-Lafond, University of Victoria law professor John Borrows, Vancouver litigator Jean Taillet and Ontario Superior Court Justice Todd Ducharme.

None are more well-known or respected than Sinclair, the Métis/Ojibway retired superior court judge from Manitoba appointed in March to be a non-partisan member of the Senate.

The ex-criminal and civil litigator, who also practiced Aboriginal law and headed several inquiries, is “the most obvious choice,” suggests a B.C. lawyer who spoke on condition of anonymity. “Murray Sinclair would be the Canadian equivalent of the appointment of Thurgood Marshall to the Supreme Court of the United States,” the lawyer said. “Thurgood Marshall was a leader in the civil rights movement. He had strong political connotations and his appointment to the U.S. Supreme Court was deliberately set to send a very strong political message — both to [African-Americans and other Americans]. He was a great judge. And my gut feeling is that if you were to look at that criterion…which is: ‘What appointment do we make to send a message that [indigenous] people are not just people that the legal system is acting on, but people who are really in the legal system,’ and to inspire [indigenous] people to come into the legal system and get trained up as lawyers, to actually practise…the appointment of Murray Sinclair, I think more than anybody else on the list that I’ve seen, would be the inspired choice.”

Judge Turpel-Lafond, 53, is another high-profile and respected indigenous jurist. With an LL.B. from Osgoode Hall, a doctorate in law from Harvard and a master’s in international law from Cambridge University, she has professional roots in Atlantic Canada, the Prairies and B.C. Born in Niagara Falls, Ont., of Cree and Scottish origin, she reads and understands French. On leave from the Saskatchewan Provincial Court where she presided over criminal law cases, she is completing her second five-year term this year as British Columbia’s independent advocate for children and youth, and pulls no punches when exposing the problems plaguing that province’s child welfare system.

An Anishinaabe/Ojibway and a member of the Chippewa of the Nawash First Nation in Ontario, Borrows, Canada research chair in Indigenous Law at the University of Victoria, speaks Ojibwe, but not French. As a top indigenous law scholar, Borrows, 53, teaches at many universities, including last year at Dalhousie University in Halifax, which conferred on him an honourary doctorate. Borrows earned a PhD from Osgoode Hall and his LL.M. and J.D. from the University of Toronto. He is the author of dozens of articles and award-winning books — most recently Canada’s Indigenous Constitution — and has been honoured for his many contributions to scholarship and indigenous communities.

Pioneering Métis litigator Teillet of Vancouver’s Pape Salter Teillet LLP, the great-grandniece of Louis Riel, is the author of Métis Law in Canada — the only comprehensive analysis of Métis case law in Canada. With an LL.B. and an LL.M. from the University of Toronto — which she entered at age 38 after a 20-year career in theatre dancing, acting, teaching and choreography —she has been at the forefront of constitutional litigation to recognize Métis rights and indigenous and treaty rights more generally. She was lead counsel in the foundational Métis rights case of R. v. Powley, 2003 SCC 43 and has represented indigenous groups in many leading Supreme Court of Canada Aboriginal rights cases.

Ontario Superior Court Justice Ducharme was a certified criminal law specialist and star defence counsel in Toronto before he became one of Canada’s first Métis judges in 2004. He holds a master’s from Yale, an LL.B. from the University of Toronto and an LL.M. from Yale. In 1999, he was the first Aboriginal person elected as a bencher of the Law Society of Upper Canada. He was the first clinic director of Aboriginal Legal Services of Toronto and a director of Native Child and Family Services of Toronto.

Other prominent indigenous jurists mentioned as having the qualifications for the top court include Métis lawyer Mark Stevenson of Victoria; Cree lawyer Donald Worme of Saskatoon and Anishinaabe lawyer David Nahwegahbow of Rama, Ont.