Aboriginal People are still without Supreme Court Representation

Prime Minister Trudeau’s selection of Justice Malcolm Rowe to the Supreme Court of Canada marks the first judicial appointment from Newfoundland and Labrador. Prior to this, on August 2, 2016, the Prime Minister announced that an advisory board would recommend a shortlist of candidates based on a new selection process. Any lawyer or judge who met the criteria of the Supreme Court Act could apply.

Aboriginal issues are now of great concern in Canadian criminal law. For starters, there is the justice system’s failure to respond to Aboriginals’ over-representation in prison. This problem has gone largely unabated.The Prime Minister’s aim was to draw candidates who would bring greater representation to the minorities of Canada. One of the ways he was to achieve this end was by requiring candidates to be functionally bilingual. It is curious that with this aim in mind, the Prime Minister appointed a jurist from the east coast rather than appointing the first Aboriginal jurist.

In 1999, the Supreme Court of Canada released its decision in R. v. Gladue, instructing the lower courts to take Aboriginal background into consideration when sentencing, exactly as the  Criminal Code requires. Thirteen years later, in the case of R. v. Ipeelee, the Court had to remind everyone that it meant what it said in R. v. Gladue, and that it is an error in law to not consider an offender’s Aboriginal background.

In Ipeelee, Justice LeBel stated for the Supreme Court:

Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society . . . To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.

For most of our existence as a country, the law has guaranteed representation to civil law and to the legal traditions of Quebec. Should similar guarantees not be provided for Canada’s Aboriginal roots?
This excerpt should remind us that we still have a long way to go in recognizing the impact that inter-generational trauma has on Aboriginal communities and, in turn, on our criminal justice system. It should remind us that Aboriginals still have reason to be distrustful of that system.  After all, our country was founded by a Prime Minister who endorsed a policy for residential schools and stated,

When the school is on the reserve, the child lives with its parents, who are savages, and though he may learn to read and write, his habits and training mode of thought are Indian. He is simply a savage who can read and write.”

Canada’s highest Court still sits with three Justices from Quebec, another Justice from Atlantic Canada (as per the custom), and no Aboriginal Justices.
It is easy to imagine why many Aboriginal youth would not want to buy into a country that started this way. More Aboriginal persons in positions of power may give them a greater stake in the game. While it is true that the Prime Minister appointed Jody Wilson Raybould as the first Aboriginal Attorney General of Canada, there is still a clear need for an Indigenous person on the Court – to help in choosing the cases that get leave and to bring an Aboriginal perspective to the adjudication.

Perhaps some priorities in Prime Minister Trudeau’s new procedures were misplaced: in particular, the new requirement of candidates that they be “functionally bilingual”.  While the Prime Minister’s new selection process protected language equality, Sen. Murray Sinclair opined that the “functionally bilingual” requirement would unfairly disadvantage Aboriginal candidates.

Acknowledging the fact that French Canadians greatly outnumber the Aboriginal people of Canada, the Quebecois have long enjoyed mandatory representation at the Supreme Court that Aboriginals have never had. Section 6 of the Supreme Court Act guarantees three seats in the Court to Justices from Quebec. The wording of this section has remained, in the words of the Supreme Court in Reference re Supreme Court Act, ss. 5 and 6, “substantially unchanged since 1875.”

For most of our existence as a country, the law has guaranteed representation to civil law and to the legal traditions of Quebec. Should similar guarantees not be provided for Canada’s Aboriginal roots?

While it is true that the Prime Minister appointed Jody Wilson Raybould as the first Aboriginal Attorney General of Canada, there is still a clear need for an Indigenous person on the Court.. Why not do more to incorporate Aboriginal legal culture into our own? Indeed, the Correctional Service of Canada reports that there is a growing interest in the use of sentencing circles in non-Aboriginal communities. This is compatible with the Supreme Court’s comment on section 718.2(e) of the Criminal Code in R. v. Wells, [2000] 1 S.C.R. 207. Justice Lacobucci stated that the provision for restorative justice applies to all offenders.  He described it as follows: “Section 718.2(e) has a remedial purpose for all offenders, focusing as it does on the concept of restorative justice, a sentencing approach which seeks to restore the harmony that existed prior to the accused’s actions.”

Ensuring greater Aboriginal representation on the Court would be a monumental step in better serving a historically under-serviced group in Canadian society. Yet, when the Prime Minister announced his new selection process, most of the news articles raised Atlantic Canada’s complaint that it would no longer have the representation it has long enjoyed. As a matter of custom, one seat on the Court has been reserved for the Atlantic Provinces. The Prime Minister’s Office confirmed that it might pass on that tradition. Yet, the Prime Minister appointed a Justice from Newfoundland.

The Supreme Court of Canada has never had an Indigenous Judge. The Prime Minister announced a new appointment process to reflect the diversity of Canada, and Canada’s highest Court still sits with three Justices from Quebec, another Justice from Atlantic Canada (as per the custom), and no Aboriginal Justices.

Should the Prime Minister have occasion to appoint another Justice, it will be high time to appoint a Justice more likely to give Aboriginal peoples a greater stake in the system.

Authors:

Matthew Wolfson
Matthew Wolfson is an associate lawyer at David Anber’s Law Office who handles trial and appellate work. Matthew has appeared before the Ontario Court of Justice and Superior Court of Justice and formerly developed experience working in the Crown Attorney’s office. Learn more at www.DavidAnber.com.
 


A Publication of CPLEA