Where’s the Indigenous representation on the Supreme Court?

In August of 2016 Prime Minister Justin Trudeau announced a new process for appointing judges to the Supreme Court of Canada. One new requirement in the process is that all candidates be fluently and functionally bilingual, in both of Canada’s official languages.

While this requirement is meant to put every candidate on an even playing field, it actually serves as a barrier to potential judges with important, diverse backgrounds: mandating strict bilingualism qualifications may prevent Indigenous candidates from being considered for judicial appointments at the Supreme Court of Canada.

In an era where we are looking towards enhancing reconciliation between Indigenous peoples and the Canadian state, it is important to have Indigenous representation and perspectives at the Supreme Court of Canada. Indigenous legal orders should also be considered when Supreme Court judges are making decisions that have an impact on all Canadians.

In a recent Toronto Star news article Chief Justice Beverley McLachlin explained that if Indigenous candidates want to be considered for a judicial appointment “they must work their way up.” In the same article, the Chief Justice went on to say that when she was appointed to the bench, she herself was not functionally bilingual in the French language. Clearly some judges who have been appointed in the past were not always functionally bilingual.

Speaking from my personal experiences as an Algonquin woman who grew up and attended school on reserve (aside from pursuing my undergraduate and law degrees), I can attest to the fact that schools on reserves are under-funded. First Nations schools on reserve currently receive 30 per cent less funding than provincial jurisdiction schools, and learning French is not a focus in these schools.

It is also a reality that Indigenous languages are currently disappearing due to the lack of language speakers in the communities. According to the Assembly of First Nations, eleven Indigenous language families with over 60 unique dialects are at risk of going extinct.

As an Indigenous woman who is pursuing a career in law, I face a unique dilemma in comparison to my non-Indigenous law school colleagues. Even though I grew up on reserve in the primarily French-speaking province of Quebec, I do not speak French. During my primary education, I actually spent the first half of the day learning English and the second half of the day learning my traditional language (Anishinabe).

I don’t know if my career path will ever lead me to the Supreme Court of Canada. I do know that under the current rules, if I do not improve my French skills to become functionally bilingual I will never have the opportunity to even be considered for a judicial appointment. Knowing that the Anishinaabe language is at risk of becoming extinct, I am more inclined to want to learn more of my traditional language.

But what could make judicial appointments accessible for Indigenous candidates? There are plenty of possibilities. The appointment process should, when considering the qualifications for Indigenous candidates, knowledge of traditional languages as a measure for comparison. Another solution would be that Indigenous candidates be given the opportunity to learn French through intensive immersion classes upon appointment to the bench. Lastly, a longer term solution to addressing this issue would be to instate adequate funding for schools on reserve so that First Nations children can have an equal opportunity at learning French along with learning their traditional language.

Caitlin Tolley is a proud Algonquin Anishinabe from Kitigan-Zibi Anishinabeg in Quebec. Caitlin is currently completing her final year of law school at the University of Ottawa.