More indigenous judges needed in lower courts to develop skills for Supreme Court: Beverley McLachlin

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 court to function without everyone being bilingual. We’ve done it in the past and I think 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 through the court of appeal, and finally to the Supreme Court of Canada.”

Now women make up about 35 per cent 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 familiarity with the 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 onto the top bench from the bar, as has been the case with some Supreme Court judges in the past: Suzanne Côté, Ian Binnie, John Sopinka.

Asked if there are any current sitting aboriginal 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 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 from Southeast Asian, and East Asian communities.

He said “the government’s heart and mind is in the right place” because it seeks to boost transparency and diversity, but he asks why the ability to speak an indigenous language isn’t viewed as an asset 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 it to say, the Supreme Court of 2016 simply 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, ethnicity, age, 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 faculties and in law practice that “the government could appoint 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.”