Insistence on French for SCC judges could block historic appointment of first Indigenous judge – The Lawyer’s Daily

Hard one to balance:

The Trudeau government’s pledge to fill the Supreme Court of Canada’s impending western vacancy with a bilingual jurist who can function in French is liable to block the historic appointment of its first Indigenous judge, lawyers say.

The Indigenous Bar Association (IBA) has pressed Ottawa for years to make an Indigenous appointment to the 142-year-old court and will do so again for the spot that is opening  up when Chief Justice Beverley McLachlin retires Dec. 15, said IBA president Koren Lightning-Earle of Maskwacis, Alta.

However the Trudeau government’s insistence that all its Supreme Court appointees be able to read and understand French, without translation, is an additional and unfair hurdle for Indigenous candidates and a “detriment to Canada,” Lightning-Earle told The Lawyer’s Daily.

If the government “starts to think outside the box on what the language prerequisite actually means to Indigenous people, and [to] truly understand history and reconciliation … then they’ll understand why the [French] language prerequisite is ridiculous,” she explained. “Our first language is our Indigenous language. And then we were sent to residential school where we were told we were not allowed to speak our language, and we were forced to speak a colonial language [English]. And now we have to speak another colonial language — just to get a seat at the table!”

The Trudeau government vowed during the election to appoint only Supreme Court judges able to function in both English and French. This was in response to concerns expressed by Quebecers, Acadians and other francophones outside Quebec that it does a disservice to their appeals when the top court’s anglophone judges can’t understand nuanced French oral argument (because interpretation is not always perfect) or read French written briefs and supporting materials (which are usually not translated).

However Lightning-Earle points out the prime minister and his government have also committed to reconcile with Indigenous peoples, as a top priority. “You don’t just get to put up a barrier and say ‘Well this is our requirement’ — without acknowledging the history — which is the spirit and intent [of] the reconciliation that the government supposedly signed on to,” she remarked.

Certainly the language prerequisite is a major obstacle for Indigenous candidates. There are, at most, a handful of Supreme Court-calibre Indigenous jurists in the west who are able to understand and read French without translation. Saskatchewan provincial court judge Mary Ellen Turpel-Lafond, who is Cree, is one, as is Vancouver litigator and Indigenous law expert Jean Teillet, who is Métis.

“There are barriers that Aboriginal lawyers and judges face that non-Aboriginal people don’t face,” Teillet told The Lawyer’s Daily. “And language is always one of those things. And so putting that kind of qualification on a Supreme Court appointment … will mean, as a fact, that we will have not an Aboriginal judge on the Supreme Court of Canada for a very long time. It won’t be because there are not really excellent Aboriginal lawyers and judges who are capable — more than capable — of doing the job. It will be because of the language barrier.”

Among those who appear to be affected is internationally acclaimed Indigenous law scholar John Borrows, 54 — who many see as a star candidate.

A member of the Chippewas of the Nawash First Nation on Georgian Bay, Borrows is currently in immersion French studies in Montreal. He is a visiting professor at McGill University’s faculty of law where he is learning about the civil law while on sabbatical leave from his post as Canada research chair in Indigenous law at the University of Victoria’s faculty of law, where he is co-developing the first joint program in Canadian common law/Indigenous law, expected to start up in 2018.

Osgoode Hall Law School dean Lorne Sossin believes Borrows “would be an outstanding choice to join the court.” He should not be blocked as he gets his French up to speed, Sossin opined.

Source: Insistence on French for SCC judges could block historic appointment of first Indigenous judge – The Lawyer’s Daily

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About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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