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Harry LaForme on Failure to Appoint Indigenous Judges

In a recent Law Society continuing education program on Indigenous Law Issues 2019, former Justice Harry LaForme offered a critique on the failure to appoint indigenous persons to the bench. In so doing, he made pointed comments regarding J0dy Wilson Raybould, Beverly McLachlin and Kim Campbell, three key influencers in making such appointments. He described the performance of Wilson Raybould as “sad”, and the reported statements of McLachlin and Campbell as “patronizing” or worse.

(LaForme’s remarks may be reviewed in full on the unique service provided by the Law Society which provides web access to continuing education programs offered by the Law Society.)

Originally asked to provide a reality check from an indigenous perspective on what it is like to practice indigenous law, and how to incorporate indigenous laws into the legal system, LaForme chose instead to focus his remarks on the failure to appoint indigenous lawyers to the bench.

The law is essential to the recognition of indigenous rights and their application

Before getting to the heart of the matter, LaForme briefly summarized the developments that led to the legal position of indigenous people being treated seriously by the government and the courts in Canada. A critical turning point was the decision of Pierre Trudeau in 1970 to acknowledge that his government’s White Paper that proposed the full integration of indigenous people was a failure. Then in 1973 the Supreme Court of Canada case Calder v. British Columbia recognized that indigenous title to land claims existed significantly before European colonization and that indigenous land title had a place amongst Canadian laws. Indigenous and treaty rights were subsequently recognized in section 35 the Constitution Act of 1982.

LaForme said that early in his career he recognized that the law would be essential to the recognition of indigenous rights. He reminded everyone of the role he played in key cases regarding the development of indigenous rights before turning his attention to the failure to appoint indigenous judges to the bench, an important next step in the process. His message – three individuals who had the power to act chose not to do so.

Jody Wilson Raybould made no indigenous appointments in her two and a half years as Minister of Justice

LaForme noted that there had been no other appointments of indigenous judges to the superior courts, courts of appeal or the Supreme Court of Canada since his appointment fifteen years ago. In commenting on the failure by the appropriate authorities to appoint indigenous judges, he said that “Sadly that includes or former Minister of Justice”. Raybould Wilson made no indigenous appointments to the bench when she had the power and opportunity to do so. This despite her role in overseeing changes to the process for appointing judges across Canada, with the stated goal of ensuring the process “is transparent and accountable to Canadians, and promotes greater diversity on the bench”. While it was reported that the government had been “naming women to the bench at an unprecedented rate”, LaForme says no indigenous judge was appointed.

Beverly McLachlin suggests that indigenous judges must work their way up like women did

LaForme next called out former Chief Justice McLachlin who said in an interview with the Toronto Star that the best way to one day see an aboriginal person named to the Supreme Court of Canada is for governments to appoint more indigenous judges to lower courts. McLachlin said the country’s highest court requires high-level judging and “considerable” judicial experience, and while she welcomes ethnic diversity and more aboriginal judges in the system, she suggested they must work their way up. She said the challenge for aboriginal aspirants to the high court is the same that women faced three or four decades ago when there were “virtually no women on the bench’. And so how did the government go about changing that to the point now where we’re four women on the Supreme Court of Canada? They started appointing people at the trial level.“But the difficulty we have with racial minorities, indigenous people is that we’re just beginning this process of getting the judges in place on the trial benches and so on.”

In making her comments regarding indigenous appointments, LaForme pointed out that she failed to take note of the frequent appointment of establishment figures as judges of the Surpeme Court of Canada and courts of appeal who have had no judicial experience. La Forme mentioned Sopinka, Laskin, Binnie and others. An even longer list could be complied of establishment judges being appointed with little of no knowledge of French.

It is interesting that McLachlin thought that the same patronizing and offensive treatment of women should be repeated with the appointment of indigenous judges. Does one wrong justify another? (My comment, not LaForme’s).

Campbell Patronizing, Arrogant, and even a bit Colonial.

La Forme strongest comments were reserved for Kim Campbell, the Chair of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments, who appeared before a Commons Committee on the nomination of Sheila Martin to the Supreme Court, on Parliament Hill in Ottawa on Monday, Dec. 4, 2017. In a manner LaForme described as “patronizing’, “with a touch of arrogance” and “a colonial ring”, Campbell told MPs that she had “absolutely no doubt” that an Indigenous judge will one day fill a seat on the Supreme Court’s bench. At the moment, she said that the pool of qualified Indigenous jurists in Canada is still “small.” but that it might be possible “maybe within the next couple of rounds.”

It got worse. She followed up with comments that make me cringe with embarrassment:

“It just sort of depends on where we are … when the next appointments are,” Campbell told the Standing Committee on Justice and Human Rights Monday afternoon. “I see (an Indigenous candidate) coming … and speaking French. They will take their place with great dignity and respect.”

“Indigenous lawyers will take their place like anybody else and there will be no doubt as to their excellence and ability to do everything,” she repeated. “Their value on the court is not whether they are knowledgeable about Indigenous law – some may be, some may not be. It’s that they will bring the lived experience of being an Indigenous person to the court.”

Sophistry and the failure to appoint indigenous judges

There is no excuse for the failure to appointment indigenous judges to the bench. There are qualified candidates. The appointment of indigenous judges was recommend as part of the reconciliation process. The commitment to reconciliation has been made. The time to act has come. The use of fallacious arguments is not an acceptable answer or excuse.

Change the selection process to include indigenous leaders It is clear that the time has come to change the selection process itself to include indigenous leaders in the process of making judicial appointments. I would suggest that Harry LaForme be given a leading role in that process. He clearly has the background, the knowledge and interest to review candidates for appointment to the bench, both indigenous and otherwise.

Change the structure of the Supreme Court The need to appoint indigenous judges is evident at every level. Even the Supreme Court could open itself up to indigenous judges in its proceedings involving indigenous law. The number 9 is not sacrosanct nor is the requirement to have bilingual judges hear every case, although it may be preferred. One option is to increase the number of judges, on a permanent or temporary basis, and increase the use of panels of judges to hear cases. In the United Kingdom for example, the Supreme Court consists of twelve justices that sit in panels of five. The full court sits only in cases of great public importance while “acting judges” drawn from the regional courts of appeal for England, Wales, Northern Ireland and Scotland may be called upon to participate in specific matters affecting their regions. The same thing could be done in Canada for decisions originating in a province which is not represented on the Supreme Court as well as when the issue is one that involves indigenous law.

Appoint someone with the will to act…appoint Harry LaForme

Resolving the issue is simply a question of having someone with the will to act be given a leadership role in the selection process for judicial appointments. From his track record and his obvious passion for resolving this grievance, it is clear that Harry LaForme should be given the chance.

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APPENDIX A

Web access to Law Society Continuing Education Programs

LaForme’s remarks may be reviewed in full on the unique service provided by the Law Society which provides web access to continuing education programs offered by the Law Society. Under this program I was able to review the full day of lectures. I used the service to confirm quotes by Harry LaForme in his presentation in preparing this post.

APPENDIX B

More indigenous judges needed in lower courts to develop skills for Supreme Court: Beverley McLachlin
Tonda MacCharles
By Tonda MacCharles Ottawa Bureau reporter
Toronto Star Wed., Aug. 10, 2016

OTTAWA—Canada’s top judge says the best way to one day see an aboriginal person named to the Supreme Court of Canada is for governments to appoint more indigenous judges to lower courts.

In an exclusive interview with the Star, Chief Justice Beverley McLachlin said the country’s highest court requires high-level judging and “considerable” judicial experience, and while she welcomes ethnic diversity and more aboriginal judges in the system, she suggested they must work their way up.
She said the challenge for aboriginal aspirants to the high court is the same that women faced three or four decades ago when there were “virtually no women on the bench. And so how did the government go about changing that to the point now where we’re four women on the Supreme Court of Canada? They started appointing people at the trial level.

“But the difficulty we have with racial minorities, indigenous people is that we’re just beginning this process of getting the judges in place on the trial benches and so on.”

The federal government has launched a new judicial selection process, striking an independent advisory board to recommend candidates to fill the top court vacancy announced in March by retiring Justice Thomas Cromwell, of Nova Scotia, who steps down at the end of August.
Trudeau wants the seven-member advisory board to recommend jurists “of the highest calibre” who must be functionally bilingual and “representative of the diversity” of Canada.

The new process has again shone a light on the lack of diversity in Canada’s judicial ranks.

McLachlin was consulted by the government as it devised the new selection process. She will also be consulted by the advisory board as it canvasses for Cromwell’s replacement. She was careful not to express an opinion on the government’s changes, saying reforms to judicial selection for greater transparency have been an ongoing project, and it is up to the government to set its criteria, including the bilingualism requirement. “I’m not about to comment on that because it’s not my business.”

However, she did endorse the functional bilingualism prerequisite as “desirable” even though she herself was not fully, functionally bilingual when first appointed in 1989 to the Supreme Court of Canada by then Prime Minister Brian Mulroney. That came after she actually started working in the law in French, she said,
Most of the judges at the top court are “completely bilingual now and those who might lack something are working very hard to improve their skill and the court works very well this way”, she said.

“let me put it this way. It’s possible for the cost to function without everyone being bilingual. We’ve done it in the past and I think that we’ve done our job well. However I believe that functional bilingualism is very helpful and desirable.”

But the question of diversity on the court is more complicated.

McLachlin pointed to her own experience.She was first appointed to the County Court of Vancouver “where I thought maybe that’s where I’d spend the rest of my days. And then I worked my way up through the trial court and the court of appeal., and finally to the Supreme Court of Canada.”
Now women make up 35% of Canadian judges, she said. “We’ve been able to achieve a significant measure of diversity on the gender front and,” she stressed, “have judges who are reflective of this high calibre of judicial experience, intellectual experience and judgment and similarity with law and judging, So we’ve been able to have it all.”

McLachlin is encouraged by ” a host of very accomplished indigenous lawyers and professors” who she said are the result of proactive programs in law schools and universities and better educational standards. However she did not suggest any of those are in a position to be vaulted on to the top bench from the bar, as has been the case with some Supreme Court judges in the past: Suzanne Cote, Ian Binnie, John Sopinka,
Asked if there are any current sitting judges that could sit on the high court, McLachlin dodged.

“I can’t say. I haven’t done a survey. We’ll see who applies and what comes of it.”

Osgoode Hall law dean Lorne Sossin said that while bilingualism is an asset that should be encouraged and supported, to make it a requirement effectively acts as a barrier to many talented aboriginal candidates and others fro Southeast Asian and East Asian communities.

He said “the government’s heart and mind is in the right place” because it seeks to besot transparency and diversity, but he asks why the ability to speak an indigenous language isn’t viewed as an assist for a court that remains “remarkably homogeneous.”

Sossin wrote Tuesday in Policy Options that “Canada has never had Supreme Court justice who is indigenous, who is from a visible minority, who has a religious background that is not Christian or Jewish, or who self-identifies as other than heterosexual. Suffice to say, the Supreme Court of 2016 simple does not reflect the Canada of 2016 – not even approximately.”

Most people agree appointments should be based on merit but Sossin says “the concept of merit signifies different things to different people.”
“For some, it can be measured objectively (for example, academic degrees, career achievements, and demonstrated legal expertise). For others, it can also encompass more holistic aspects of a potential jurist, such as empathy, imagination, humility, resilience and interpersonal/intercultural skills. But where do gender, race, sexual orientation, religion, culture and life experience fit into these understandings of merit?”

In an interview, Sossin said “unquestionably” there are indigenous candidates in Canadian courts, law facilities and in law practice that “the government could appointment that could both enhance the quality of the (Supreme) court, its stature and its expertise and at the same time see the first member of an indigenous community appointed to the court. Absolutely. But I don’t think the bilingualism requirement assists in that process.”

On the other hand, he said, an aboriginal appointment to the high court would not merely “tick a box on diversity and inclusion” – it would bring much needed perspective on indigenous law and treaties that are a fundamental aspect of the Constitution, “one that we’ve always had to interpret because we’ve never had anyone who can speak in a first-person understanding of the language and culture from which those treaties emerged.”

APPENDIX C

SCC will get an indigenous judge eventually: Campbell
by Beatrice Britnell published on Dec. 4, 2017 at 6:46 p.m. in politics

This article was accompanied by a photo of Jody Wilson-Raybould at Kim Campell’s side. The caption for the photo was as follows:”Justice Minister Jody Wilson-Raybould Wilson, left and former PrimeMinister Kim Campbell f the Independent Advisory Board for Supreme Court of Canada Judicial Appointments, arrive to appear at a Commons committee on the nomination of Sheila Martin for the Supreme Court. on Parliament Hill in Ottawa on Monday Dec. 4, 2017. The Canadian Press/Justin Tang.”

“Former prime minister Kim Campbell told MPs today she has “absolutely no doubt” that an Indigenous judge will one day fill a seat on the Supreme Court’s bench — but remained cryptic about whether eligible and functionally bilingual aboriginal candidates exist at the moment.

Prime Minister Justin Trudeau revealed his pick last week for the impending vacancy on the Supreme Court of Canada – an appointment that, while widely praised, came as a disappointment to Indigenous groups and lawyers who had hoped he would elevate the first Indigenous jurist to the high court.

Campbell, who chaired an advisory committee that helped streamline candidates for the Supreme Court position, said the pool of qualified Indigenous jurists in Canada is still “small.”

Asked by NDP MP Alistair MacGregor for her thoughts on the search for an Indigenous candidate and whether Canada will ever reach that point, Campbell said it might be possible “maybe within the next couple of rounds.”

“It just sort of depends on where we are … when the next appointments are,” Campbell told the Standing Committee on Justice and Human Rights Monday afternoon. “I see (an Indigenous candidate) coming … and speaking French. They will take their place with great dignity and respect.”

When pressed after the committee’s meeting about whether there are Indigenous judges right now who meet the requirements to be a Supreme Court justice – which include being “functionally bilingual” – Campbell chose her words carefully, noting “there are some very good people who didn’t apply.”

“There are people that we are going to encourage to apply,” she said. “What I would say is there are people who will be credible candidates in the coming rounds.”

A seat on the Supreme Court opened up about six months ago after Chief Justice Beverley McLachlin announced she would be retiring on Dec. 15, 2017. The Liberal government launched its search for her replacement in July and, despite pressures to increase diversity on the top court, Trudeau ultimately appointed Alberta judge Sheilah Martin last Wednesday.

Somewhat contrary to Campbell’s comments Monday, Indigenous lawyers and groups have insisted that qualified aboriginal candidates applied for the spot.

“It’s a systemic issue rather than necessarily an inability to find people,” Brooks Arcand-Paul, treasurer of the Indigenous Bar Association, told iPolitics last week.

Campbell on Monday likened the current situation to one she experienced in the 1990s, when she served as federal justice minister. She said only a minority of bar members eligible for appointments to superior courts at the time were women. Still, she said, 25 per cent of her appointments were female lawyers and she noted Justice Minister Jody Wilson-Raybould is working to appoint more Indigenous judges.

The advisory board supporting the Supreme Court selection process interviewed eight of the 14 candidates who submitted applications and those eight candidates took a French proficiency test, Campbell told MPs. The former prime minister said more interviewees were functionally bilingual than weren’t – and the committee was “very pleasantly surprised” overall with their proficiency in French.

Sen. Murray Sinclair, former chairman of the Truth and Reconciliation Commission, and Assembly of First Nations National Chief Perry Bellegarde have both argued the French language requirement poses an unfair barrier to Indigenous candidates. Campbell said Monday the requirement is “no more a barrier than it is to non-Indigenous candidates” and she believes a language exception for Indigenous jurists “will not be necessary.”

Campbell insisted as well that the requirement to be functionally bilingual is not a “political” or “meaningless” gesture.

“It really does matter. It’s directly related to the work of the court, ” she said, adding that the Supreme Court caseload is extremely heavy and “there isn’t time to do extra translation.”

“Indigenous lawyers will take their place like anybody else and there will be no doubt as to their excellence and ability to do everything,” she repeated. “Their value on the court is not whether they are knowledgable about Indigenous law – some may be, some may not be. It’s that they will bring the lived experience of being an Indigenous person to the court.”

Despite criticisms, Martin’s nomination was still widely applauded – with many observers noting she is an extremely qualified candidate. Wilson-Raybould, who also appeared before the justice committee Monday, said she is convinced Martin will be “an outstanding addition to the court.”

“She has truly done it all – a leading academic, a law dean at the Univeristy of Calgary, a gifted constitutional litigator, a hard working trial judge, and most recently an appellant court judge,” the justice minister said. “Two things struck me about her career. First the extraordinary depth and breadth of her experience. And second her unshakable commitment to justice and equality for all.”

“Justice Martin is an extraordinary candidate who kind of hits it out of the park on so many different issues,” Campbell also said.

Campbell told MPs Martin was one of six female applicants – and one of three names on the shortlist the advisory committee delivered to Trudeau.

This latest selection process for the Supreme Court, which was limited to applicants from the four western provinces and Canada’s North, drew less than half the number of applications than the previous round, which was Canada-wide. Asked whether the low number of applications could be attributed to the geographic restriction, Campbell said yes – but added it should be taken into account that Western Canada is “very far from Ottawa.”

“The Supreme Court Act requires justices to live in the National Capital Region … there are many distinguished members in the legal community for whom that is just not possible,” Campbell said. “I think it is important for us to understand that commitment.”

Martin will participate in a question and answer session tomorrow with members of the parliamentary justice committee, members of the Standing Senate Committee on Legal and Constitutional Affairs, and Bloc Québécois and Green Party MPs.

Trudeau’s next task concerning Canada’s top court is picking a new chief justice. Campbell declined to comment on whether Trudeau should select a justice from Quebec to lead the Supreme Court next, in keeping with a somewhat imperfect convention of alternating appointments between judges who have background in common law and civil law.

Comments

  1. Re Raybould-Wilson’s failure to appoint an Indigenous judges, wondering whether any Indigenous lawyers were on the lists recommended by the Judicial Appointments Advisory Committees.

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