Skip to main content

Sen. Murray Sinclair poses for a photo outside his Senate office on Parliament Hill on Sept. 20, 2016 in Ottawa.Adrian Wyld/The Canadian Press

Two leading First Nations voices say the government's new Supreme Court of Canada selection process creates unfair barriers for indigenous candidates due to its "functionally bilingual" requirement.

Sen. Murray Sinclair, former chairman of the Truth and Reconciliation Commission, and Perry Bellegarde, national chief of the Assembly of First Nations, told The Canadian Press an indigenous appointment to the top court is long overdue and should be the government's top priority.

Many indigenous people speak their own languages such as Cree or Mohawk, Bellegarde said, noting the ability to speak French and English should not stand in the way of appointing an indigenous person to the top court for the first time.

"I think that's the greatest act of reconciliation, if the prime minister is serious about that, is to put an indigenous person ... on to the Supreme Court of Canada because ... they are going to bring that other perspective that it is not only common law and civil law — you have indigenous law, First Nations law that has to be incorporated into the justice system," he said in an interview.

Canada wasn't just founded in English and French, Bellegarde added.

Last March, Justice Thomas Cromwell said he would retire from the Supreme Court as of Sept. 1.

Prime Minister Justin Trudeau announced in August that an advisory board would review suitable candidates who would be jurists of the highest calibre, functionally bilingual and representative of Canada's diversity.

Current Supreme Court justices were not required to be bilingual at the time of their appointments, Sinclair noted.

"Now we are talking about potentially appointing a Supreme Court member who is from the indigenous community, now we are requiring that person has to be bilingual is unfair," Sinclair said.

"What they need to do is, they need to put in place a process that puts balance to the Supreme Court first as a priority and a Supreme Court appointee who is from the indigenous community is, I think, a significantly more important consideration than ensuring that every appointee is fully and functionally bilingual."

Justice Minister Jody Wilson-Raybould — the country's first indigenous justice minister — said in a statement the Liberal government is committed to appointing functionally bilingual judges to ensure the court reflects "the country's bilingual character."

"The government is committed to ensuring that the Supreme Court of Canada reflects the diversity of Canadian society," Wilson-Raybould said.

"Canada boasts a growing complement of outstanding indigenous jurists, including judges, lawyers, and academics. Canadians from all communities — including indigenous communities —were invited to encourage outstanding jurists to apply to become a justice of the Supreme Court of Canada."

Wilson-Raybould is still in the process of learning French, a spokesperson said Thursday, noting the minister speaks English and Kwak'wala, her native language.

The Liberals have also faced criticism over the new appointment process from Atlantic Canada, which by convention has always held one seat on the court. Some trial lawyers have gone to court to try to ensure the region keeps its traditional seat.

Trudeau has noted regional representation is important among the justices, but he has not specifically committed to replacing Nova Scotia's Cromwell with someone from the same region.

On Thursday, the federal Conservatives introduced a motion in the Commons calling on the prime minister to respect the tradition of Atlantic representation on the court.

During question period, Wilson-Raybould defended the government's process, adding she looks forward to working with the independent advisory board regarding the next Supreme Court justice.