A place for Indigenous peoples on Canada’s top bench

Originally published by Policy Options

Par Date de publication

 Christina Gray 21 février 2018 

Le fait d’inviter l’Association du Barreau autochtone à l’assermentation du juge en chef de la Cour suprême constitue un pas dans la bonne direction. Mais il reste beaucoup à faire pour améliorer les relations entre les peuples autochtones et le plus haut tribunal du pays.

As a young Indigenous child growing up in East Vancouver, I would not have thought that one day I would attend a celebration of the swearing-in of a new chief justice at the Supreme Court of Canada in Ottawa. That wasn’t in the realm of possibility for me. I cared more about watching shows like Sabrina the Teenage Witchand playing outside with my friends. How different was I from the many Indigenous youth growing up today in Canada?

Richard Wagner was appointed to the Supreme Court of Canada in 2012 and appointed chief justice late last year. He was officially sworn in on December 18, 2017. The Indigenous Bar Association was invited to a celebration of a second swearing-in, held in early February. It was the first time in history that a chief justice invited our association to such an occasion, and the invitation was most appreciated.

When I entered the Supreme Court building, it became glaringly apparent that as an anglophone, I’ve prized English over French. I was unable to understand the francophone security guard’s simple directions about where to put my bag. Over the course of the morning, this happened again and again as I listened to many speeches oscillating between English and French.

For most of my life in Canada, I have never felt the imperative to learn or speak French. I have travelled to places where French is the primary language and I usually get by in English, but I always felt like I was missing out on the conversation. In Canada’s highest court it was keenly apparent that Canada’s two official languages have equal weight. Unfortunately, growing up in British Columbia, we began learning French only in grade 6, and even then, it wasn’t treated equally.

Also sworn in on December 18 was Justice Sheilah Martin, the newest member of the Supreme Court of Canada. The Indigenous Bar Association wrote that in the history of the Court, there has never been an Indigenous jurist. This was a missed opportunity. During my day at the Supreme Court, I was acutely aware of this absence. Even though Jody Wilson-Raybould, the Minister of Justice and Attorney General of Canada, is an Indigenous woman, there remains poor representation of Indigenous or diverse peoples.

As an Indigenous person, I identify as being from diverse backgrounds. I am a part of a long line of Tsimshian and Dene Indigenous ancestors born on these lands for generations, some of whom were also French- and Michif-speaking Métis people. Before meeting Chief Justice Wagner, I looked at the portraits of former chief justices hanging on the walls. They depict mostly men — with the exception of Beverley McLachlin — and the portraits at most law societies and courts across the country are similar in this respect. When will this change?

My visit to the Supreme Court reminded me that one way judicial representation can change is for more Indigenous lawyers to learn French so that they can be qualified for judicial appointments under the current system. In 2015, the Trudeau government implemented a requirement of bilingualism for all Supreme Court judges. While it isn’t written into the Supreme Court Act that jurists at the highest court must be bilingual, this policy supports the cultural mosaic that has been foundational to Canada’s Constitution. But does it need to be this way? Are there other ways of being inclusive of Indigenous peoples in the justice system?

My ancestors spoke our Tsimshian Sm’alygax, Dene Chipewyan and Michif languages. Unfortunately, I cannot speak my Indigenous languages — except for a few words — because of the imposition of colonial and assimilationist policies and dispossession from our traditional territories. When I travel in Canada, I try to learn some of the protocols, laws, cultures and languages of the Indigenous peoples of the territories I am visiting. This is a small but important gesture to make when we are guests on other people’s lands. It is important to include Indigenous representation and local Indigenous language, leadership and legal traditions in our Canadian courts, city council chambers, provincial and territorial legislatures, the House of Commons and the Senate.

Inviting the Indigenous Bar Association was one important step that the Supreme Court of Canada has taken to build a better relationship with the Indigenous bar. Yet much more is required to foster relationships through the court system and to honour the Aboriginal and treaty rights of Indigenous peoples. I hope that we will soon see a painting of an Indigenous chief justice also adorning the walls of Canada’s highest court.

Photo: Chief Justice of Canada, Richard Wagner, centre, is applauded by colleagues Justice Rosalie Abella, left, Justice Michael Moldave and Justice Clement Gascon, right, during a ceremony marking Wagner’s appointment as Chief Justice of the Supreme Court of Canada, in Ottawa on Monday, February 5, 2018. THE CANADIAN PRESS/Fred Chartrand