Update: PM Trudeau has appointed Sheilah Martin to the Supreme Court of Canada. Read full story here.
No Indigenous judge has sat on the Supreme Court of Canada, an omission by past prime ministers that provides our current one with an opportunity that he is not about to squander if he can help it.
Prime Minister Justin Trudeau would have liked to cross that "first" off his to-do list last year, when he made his debut Supreme Court appointment. He even vowed to dispense with the 140-year-old convention of regional representation to free his hand. Someone had to take him aside for a history lesson after that. Regional representativeness was at the very heart of the Supreme Court's creation in 1875 and has remained a sacrosanct principle of Canadian federalism.
After all, one of the court's main jobs is to settle jurisdictional disputes between Ottawa and the provinces, and between provinces. What's more, with two recognized legal systems – civil law in Quebec, common law elsewhere – the imperative of having Supreme Court justices versed in both has required legislative guarantees reserving three of nine seats on the court for judges from Quebec. This requirement has since been elevated to a de facto constitutional guarantee.
When the last judge from Nova Scotia stepped down, Mr. Trudeau faced slim pickings as he sought to find a replacement who checked all his boxes. Finding a qualified Indigenous female and functionally bilingual candidate from Atlantic Canada proved next to impossible. So, Mr. Trudeau appointed a white male from Newfoundland, providing the province with its first Supreme Court justice in Malcolm Rowe. At least that made Newfoundlanders happy.
With Chief Justice Beverley McLachlin stepping down next month, Mr. Trudeau has the chance to really make a statement. He's already conceded that his next appointee will come from Western Canada "in recognition of the custom of regional representation," and has explicitly said potential candidates from Northern Canada would also be considered. The real question, however, is whether Mr. Trudeau will be so bold or reckless (depending on your perspective) as to name an Indigenous justice who would seek to put Indigenous law on equal footing with our common and civil law traditions. That would truly revolutionize Canadian jurisprudence.
Ideally, for the Prime Minister, his next appointee would be an Indigenous woman. This would not only allow him to prevent the number of female justices from falling to three from the current four – four being considered a minimum number for a self-styled "feminist" prime minister. It would allow him to make history by putting an Indigenous judge on the top court.
There appears to be a candidate tailor-made to meet Mr. Trudeau's goals in Mary Ellen Turpel-Lafond. A member of the Muskeg Lake Cree Nation, she has been on leave from the Saskatchewan Provincial Court for more than a decade and served until last year as British Columbia's Representative for Children and Youth. But without a long history of judicial decisions by which to measure her legal dexterity or philosophy, naming her carries risks of the unknown.
Another Indigenous candidate appears to be John Borrows, provided the University of Victoria law professor can be considered a Western Canadian. He is an Anishinabe/Ojibway from Ontario and has never served on a court in Western Canada. That need not be an obstacle to his appointment and he would bring a revolutionary perspective to the court by infusing its decisions, or his dissents, with principles of Indigenous law.
Prof. Borrows, who is developing a combined common/Indigenous law program at UVic, has described his approach as "drawing the law out of the land." In one description, that involves "documenting ceremonial dances, cultural practices such as the potlatch, origin stories, contact stories about settlers, totems, wampum belts and other artistic works, and then teasing out the legal principles and precedents embedded within them." The aim is to "create legal institutions that are transparent, accountable and potentially 'harmonizable' with other laws."
The operative word there is "potentially," since the incompatibility between Indigenous legal traditions and many "other laws" is evident. That is not to say Canadian courts will not need to increasingly take Indigenous law into account in the future. It would seem to be a sine qua non of the reconciliation between native and non-native Canadians that Mr. Trudeau aims to foster.
The Prime Minister must also ensure, however, that the country remains governable. Several decisions by the top court involving native rights have already made that much harder. Just how much more does Mr. Trudeau want to complicate his own job and those of his successors?