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Canada Harry LaForme, a groundbreaking Indigenous judge, looks back in anger at the milestone Canada missed

Fourteen years ago, Harry LaForme became the first Indigenous judge on Ontario's Court of Appeal. His retirement will leave Canada without any Indigenous appellate judge, and no Indigenous person on the Supreme Court of Canada, as Mr. LaForme had long hoped.

Mark Blinch/The Globe and Mail

He grew up at a time when life for aboriginal peoples was circumscribed not only by vicious discrimination but by law.

His father needed government permission to leave their reserve. The federal Indian agent ran band council meetings. If you wanted to put an issue on the agenda, it had to be in English. He grew up angry, ashamed of his Indigenous heritage, hanging around pool halls, not caring what he did with his life.

Yet he became Canada’s first and only Indigenous judge on an appellate court.

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Justice Harry LaForme, who retired from the Ontario Court of Appeal last month, has long since overcome the rage of his youth, but he is angry once more. He has come a long way, but he believes that Canada, in some important respects, has not. He is angry on behalf of his community, but it’s personal, too. As much as things changed, this key figure in Indigenous jurisprudence still found himself shut out of a place in the country’s top court.

He might have been a candidate for the Supreme Court of Canada, he says. Former prime minister Kim Campbell, who chaired a committee putting together a short list for Prime Minister Justin Trudeau, wrote him a letter inviting him to apply. But it was pointless, he told her.

Prime Minister Trudeau had adopted a requirement that all candidates for the country’s highest court be functionally bilingual; the court works in both Official Languages. And like many Indigenous people of his generation, he was not taught French as a schoolchild.

“That functionally bilingual requirement trumped what I think is an even more precious notion for the Supreme Court, of having an aboriginal person there,” Mr. LaForme, who is 72, says.

And that means that a certain kind of experience ­– of growing up Indigenous at a time when the law itself was an oppressor – may never be found on the Supreme Court of Canada, he said.

“I’m not talking about someone born and raised in Toronto who worked for Osler, Hoskin and Harcourt,” he says, mentioning a prominent Bay Street firm where he in fact began his legal career. “I’m talking about a person born and raised on a reserve, who knows the reserve politics. Knows what it’s like to live under the yoke of the bureaucracy of Indian and Northern Affairs. That’s the experience that I want brought to the Supreme Court.”

None of Canada's nine current Supreme Court justices are Indigenous.

The Canadian Press

Mr. Trudeau, who has stressed the importance of reconciliation, declined to be interviewed for this story, and the Prime Minister’s Office referred questions to Justice Minister Jody Wilson-Raybould. She said in an e-mailed statement that Canada’s highest court should reflect the country’s bilingual character, adding, “While there is currently no Indigenous person on the Supreme Court of Canada, I can certainly see this historic day coming soon."

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The life experience Mr. LaForme is referring to began, for him, in the early postwar years – a childhood full of poverty, death and scrabbling for pocket change.

He and his parents and siblings (a new one each year, five children in all, and much later, a sixth) lived in a converted granary on the small reserve of the Mississaugas of the New Credit First Nation near Brantford, Ont., sleeping in the loft. The kitchen had a mud floor. There was no electricity or running water. His older sister, Patricia ­– “Patsy” – died at 3 from asthma, when Harry was a year old. When he was 4, three of his four young cousins died in a house fire that he witnessed, and that still haunts him – his mother trying to fight through the flames to save the children, an infant tossed from a window to safety.

His father, Maurice, was a talented sketch artist and had gone to university on a scholarship. The other students mocked him. “You get tired of being called a ‘smoked ham,’” – a derogatory reference to skin colour – he would later tell his children. “Maybe it was an excuse to leave,” Mr. LaForme says now, in an extended interview in his elegant appeal-court office, “but you can be prodded out.” His father quit school for good.

And became an alcoholic. “He was truly a drunk until I was 17 years old and then he stopped drinking and never drank again for the rest of his life. And he was an abusive drunk as well. He used to use the strap, and as we got older, he hit us.”

Mr. LaForme’s experience with his father left its mark in another way, too. “I think it just strengthened him,” his younger brother, Mark LaForme, 59, said in an interview. “It made him determined to be somebody that his father wasn’t.”

Much later, Harry LaForme came to view his father in a more sympathetic light.

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“My dad couldn’t find work because he was Indian. There were jobs. You could work in mines and things like that. When he was a young man, he would have needed permission to go off the reserve, because that was the law – Indian Act law. If he went over the reserve line – even when permission wasn’t required any more – and into the town of Hagersville, which borders on our reserve, and went into a beverage hall, they wouldn’t serve him a drink. In fact, they had signs on the wall that said ‘no Indians served here.’ Maybe he had every reason to drink. My dad was maybe one step above a slave.”

When Harry was about 6, his father found a permanent, full-time job at General Motors, which opened a forage plant and a foundry in Buffalo. (He did physical labour in the foundry.) The family moved to the United States. And Harry avoided the experience that shaped so many of his people, including those on his reserve – residential school.

Not that it was a quiet, bucolic childhood in Buffalo. Times were “racially tense,” he says. At school, other children snapped his ruler and smashed his books. He and his older brother Bryan got into scraps.

“You’d do anything not to be an Indian,” he said.

His journey out of poverty and shame began with self-reliance. When he was 10, he shone shoes with Bryan, trooping around with an old ammunition box full of brushes and polish, going from bar to bar in Buffalo.

He had more than just street smarts, though. He and his younger sister, Gloria, signed up on their own for library cards. Their family moved frequently, but they signed out books wherever they went. His grade-school principal saw something in him and tutored him, encouraged him to believe in himself.

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When he finished grade school, he wrote an entry test for a high school specializing in engineering and drafting skills, and qualified. The high school led to a skilled job in Rochester in machine-and-tool design, and as a draftsman.

But it was basketball – coaching a team of 10- to 13-year-old Indigenous kids, including Mark – that brought an awakening. The boys raised funds to buy silk jackets with the logo Indian Athletic Club. And they wore the thin jackets even in winter, so proud were they of their team, and their heritage.

“Those kids showed me,” says Mr. LaForme, who today is a married father of three. “They were aboriginal kids, and they never hid it for a second from anybody. They wore it on their sleeve. They were as proud as could be of who they were. And that rubs off.”




Mr. LaForme stands in front of courtroom doors at Toronto's Osgoode Hall.

Mark Blinch/The Globe and Mail

He was invited to come back to Canada in 1969. It was the year of the White Paper, Jean Chretien’s assimilationist blueprint for aboriginal peoples. A group called the National Indian Brotherhood was organizing against it, and wanted Mr. LaForme, then in his early 20s, to run their office in Toronto. Over long talks with a law student who was part of the organization, he realized that their movement would be driven by the use of law as a tool to achieve greater control over lands and resources. Law schools such as Osgoode Hall in Toronto were accepting “mature students,” and Mr. LaForme – who had not gone to university as an undergraduate – scored well on the entry test. He got in.

Echoing his father’s experience, he heard from some of his peers that he shouldn’t worry, that because he was an Indian, the school wouldn’t fail him.

“I don’t know whether people know that that’s deflating to a person,” Mr. LaForme says, “because you’re not even respected for what you genuinely accomplish in law school.” In fact, he says, there was no special treatment.

Unlike his father, he did not quit – the law dean, Harry Arthurs, made him feel he belonged – and his subsequent career as a lawyer spanned 15 years. Now that he knew who he was, as he puts it, he specialized in aboriginal law, when the field was just coming into existence.

It was an exciting time. In 1974, the Supreme Court, in a ruling known as Calder, declared that First Nations hold some form of title over unrelinquished lands. That led Canada to begin land-claims discussions, and eventually to develop new processes for settling disputes. Mr. LaForme represented First Nations from across the country in advocating for resolution processes independent of government.

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“In these issues, he’s like the northern star,” Manny Jules, the Chief Commissioner of the First Nations Tax Commission, who worked alongside Mr. LaForme, said in an interview. Indigenous peoples “knew the process was real, because Harry was involved.”

He was also an adviser to Indigenous groups during the 1981 First Ministers conference that led to the patriation of the Constitution, with new protections for Indigenous rights. Later, he chaired federal and provincial bodies dealing with land claims and education.

“I’m sort of like Forrest Gump – I was in those historic moments somewhere,” Mr. LaForme says.

In 1986, he and his father worked together on a land claim on behalf of the Mississaugas of the New Credit First Nation. (Sober, his father became the elected chief of his people, and led a successful national push to put residential treatment centres for substance abuse on reserves.) Their community had never signed agreements relinquishing title over most of what is now Toronto. In 2010, the federal government paid the reserve a settlement of about $145-million, money used today for economic development projects, education and other endeavours.

Federal Liberal justice minister Allan Rock appointed him a superior court judge in 1994. It didn’t make Mr. LaForme immune to racism; a fellow judge, introducing him at a legal event, joked that he had escaped from a reserve. “No matter what your station is in life,” Mr. LaForme says, the incident was a reminder that “you occupy a different place.” But he also had mentors and supporters on the bench, including judges Patrick Hartt and Robert Reid – “like fathers to me” – and Roy McMurtry, who would be his chief justice on two levels of court.

“He’s a very committed, caring person, very sensitive to the litigants before him,” Mr. McMurtry said in an interview.

A highlight came in 2002, when Mr. LaForme was part of the first court ruling in Canada to strike down heterosexual-only marriage as discrimination against same-sex couples.

“Whenever the arguments were being made,” he says now, “I would say, ‘If this was an aboriginal person fighting for this, does this sound familiar? Would anybody balk at this? Does it sound like it would be right?'”

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He became the first Indigenous judge on an appeal court in 2004. “Who better to understand justice than someone who has lived with injustice?” federal Liberal justice minister Irwin Cotler, who made the appointment, told him.

A courtroom sketch from 2004, soon after his appointment, shows Mr. LaForme trying an indecent assault case.

M Boucher/City TV

In Mr. LaForme’s 14 years on the Court of Appeal, he became known for his dissenting rulings in R v J.A., on a woman’s lack of capacity to consent to sex while asleep or unconscious, and in R v Marakah, on the privacy of cellphone texts, even in the hands of the person who receives the texts; both dissents were ultimately adopted by the Supreme Court of Canada.

His former colleague, John Laskin, who retired last March from the appeal court, said he had courage, compassion for the underdog and humility. “He was a great judge,” he said.

In 2008, Mr. LaForme took a leave to become Chief Commissioner of the Truth and Reconciliation Commission.

“It’s something I really thought I had lived my life to do,” he says.

But he clashed with the two other commissioners, largely over whether as chair he would lead or submit to majority rule. He said then, and maintains now, that he was trying to protect its independence, both from government and the country’s Indigenous leadership. The commission appeared headed toward a nasty bit of litigation among its leaders. He walked away after just five months, to be replaced by Murray Sinclair, who was the first Indigenous judge appointed in Manitoba (and is now a member of the Canadian Senate).

Two Ontario positions came up on the Supreme Court three years later, and Mr. LaForme’s name did receive some consideration, Mr. McMurtry told The Globe and Mail. But the experience with the commission might have hurt his chances, The Globe reported at the time.

When Mr. LaForme told the residential-school survivors he was leaving, he says, they gave him an eagle feather, symbolic of honesty, integrity and respect. It is framed on his wall in the Court of Appeal office.

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Mr. LaForme listens to testimony from a student holding an eagle feather at a mock trial at First Nations School of Toronto on Dec. 6, 2012.

Kevin Van Paassen/The Globe and Mail

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On the occasion of his retirement, reluctant to leave the country with no Indigenous appellate judge, Mr. LaForme is looking back at his life and his country, and wondering whether things have really changed for his people.

When Prime Minister Trudeau came to power three years ago, there was no requirement that judges be functionally bilingual at the time they are appointed. (Mr. Trudeau has not spoken publicly about the effect of the requirement he instituted two years ago on Indigenous applicants.) Graham Fraser, who was the Commissioner of Official Languages then, published a two-page website statement explaining why he believed bilingualism to be essential on the court. For instance, francophone litigants, unlike their anglophone counterparts, must try to persuade judges who do not understand the language in which the arguments are presented.

But he, too, made no mention of Indigenous peoples.

Mr. LaForme is not the first to take issue with the bilingualism requirement. Mr. Sinclair called it unfair, and said the greatest act of reconciliation would be to put an Indigenous judge on the Supreme Court.

But Mr. LaForme is the first potential candidate to express deeply personal feelings about the issue.

He said he understands why the Prime Minister would want the court to be bilingual – although for practical purposes, “the translation services are the best in the world. They are better than anybody who thinks they’re functionally bilingual, and more trustworthy.”

When the last vacancy for the Supreme Court of Canada came up, he was 70. Mandatory retirement is 75.

The Prime Minister announced that the position was reserved for a Western or Northern judge. He eventually chose Justice Sheilah Martin of Alberta, who has a feminist background, is bilingual and is not Indigenous. As Justice LaForme sees it, this appointment could have been an opportunity to begin a new tradition, with an Indigenous judge.

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“That’s the story of our lives as Indigenous people,” he said. “If there’s a way not to do it that appears credible, that’s what happens.”

He says he tried to learn French as an adult, but in his busy life, he found it impossible.

“And if I was going to learn a language, I think I’d want to learn the language that was taken from me first – mine.” The language of his people was Ojibway.

While he is proud of his country (“Canada is a great country and … always looking to be better”), he is blunt about what he sees as its flaws.

“I’m going to be very honest with you,” Mr. LaForme says, and his voice catches. “This reminds me of residential-school days. Because the whole purpose of residential schools was, we want Indians to be like Canadians. And in order to be like Canadians, we have to first ‘kill the Indian in the child,’” he said. (The TRC said in its final report that that was the purpose of the residential-school policy.) ”Get rid of their pagan ways, and then they can join us.

“So for me, there seemed to be a similar theme: ‘Harry, you might be good enough to join the Supreme Court but first you gotta be like us.’ That was my first reaction. ‘Here we go again, it never ends.’ And it still hurts.”

Mark Blinch/The Globe and Mail

Editor’s note: (November 22) This article has been updated to correct a photo caption.
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