Tansi Nîtôtemtik,
Today’s post will look at the importance of having Indigenous judges and justices in Canadian courts. While much of this month has been spent exploring Indigenous law and traditional legal orders, having judicial representation of First Nation, Métis, and Inuit persons can support reconciliation, while striving for legal pluralism and legal sovereignty.
The Truth and Reconciliation Commission’s Final Report found that Canadian law “has been, and continues to be, a significant obstacle to reconciliation”. [1] Distrust and prejudice underlie many Indigenous peoples’ relations with the Canadian legal and justice system. Twenty of the ninety-four Calls to Action are directly related to ‘Justice’ (seventeen) and ‘Equity for Aboriginal People in the Legal System’ (three). [2]
Historically, Indigenous Canadians have been underrepresented in the legal profession at large, and especially in the judicial profession.
In 2012, there were only 18 Indigenous judges in courts across Canada. [3] Although the current number of Indigenous judges and justices in courts across Canada is not readily available, it is likely higher. Between November 2016 and November 2021, sixteen Indigenous justices have been appointed federally. [4] On September 1, 2022, Justice Michelle O’Bonsawin was appointed to the Supreme Court of Canada. [5] Justice O’Bonsawin is an Abenaki member of the Odanak First Nation, and the first Indigenous person to sit on the Supreme Court.
Statistics on the ethnicity of provincially appointed judges are less readily available. However, in February 2023, Alberta appointed five new judges to the Provincial Court, including two Indigenous judges. These Indigenous judges include Judge Lionel R.R. Chartrand, who is of First Nation and Métis ancestry, and a member of the Métis Nation of Alberta, and Judge Jordan Stuffco, who is also a member of the Métis Nation of Alberta. [7]
It is important that there is Indigenous representation on the judicial bench to address bias and stereotypes that have historically underpinned judicial decision-making. Indigenous judges can bring understanding of Indigenous cultures and traditions, including legal traditions, to the bench. As discussed last week, specific Indigenous criminal courts consider both culture and traditions, and it is important to have Indigenous judges in these courts.
Another area that benefits from the involvement of Indigenous judges is the implementation of restorative justice programs in courts. As opposed to the traditional Canadian criminal justice system, which focuses on punishment, restorative justice prioritizes healing for the offender and the victim, and reparations of harm. Restorative justice systems should be implemented with input from those they are likely to impact, and Indigenous judicial perspectives are invaluable in this regard.
In addition to criminal cases, there has been a proliferation in cases on treaty rights and land claims over the past decade. [8] While an argument can be made that these cases should be decided using Indigenous legal systems, if they are to be decided in the context of Canadian law, Indigenous judges can provide Indigenous perspectives on significant issues.
Judges can also support the reconciliatory goal of rebuilding trust in the legal system. Historically, Indigenous communities have been subject to laws made, and imposed upon them, by outsiders. Indigenous judges can help bridge the divide between the Canadian legal system and Indigenous communities. “Until Canadian law becomes an instrument supporting Aboriginal peoples’ empowerment, many Aboriginal people will continue to regard it as a morally and politically malignant force,” and having judicial voices that represent Indigenous peoples can help further empowerment. [9]
While the appointment of two new Indigenous judges in Alberta is a good step, we have to look further. There have been calls for greater representation at the Supreme Court level. Currently, there are three judges from Quebec, three judges from Ontario, and three from the rest of Canada. This represents the English and French origins of Canadian law, but does not consider the original laws of this land. Having dedicated Indigenous justices on the Supreme Court would recognize that First Nation, Métis, and Inuit cultures and legal traditions bear consideration in the legal decision-making process.
Professor John Borrows calls for three Indigenous justices to sit at the Supreme Court, to provide “various perspectives from different clans, from different parts of society to get to the better decisions.” [10] Alternatively, the Canadian Supreme Court could borrow the idea of “acting judges” from the British Supreme Court. Acting judges can be consulted when the Court “lacks expertise and seeks to benefit from the experience of a lower court judge in a particular case”. [11] However, in order for acting judges to be called upon, they must be a judge in a lower court, which means we need more Indigenous judges at all levels.
The ultimate goal is for Canada to adopt legal pluralism and a fulsome recognition of Indigenous law. Having Indigenous representation on provincial and federal judicial benches is one way to repair trust in the legal system, by ensuring that there is perspective and input that can dispel the harmful stereotypes found in judicial decisions.
Until next time,
Team ReconciliACTION YEG
[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015) at 255.
[2] See Truth and Reconciliation Commission of Canada, “Truth and Reconciliation Commission of Canada: Calls to Action” (2015), online (pdf): National Centre for Truth and Reconciliation <www.nctr.ca> [https://perma.cc/K38W-UGKZ].
[3] Lorne Neudorf, “Aboriginal representation at the Supreme Court” (9 Jun 2012), Toronto Star, online: <www.thestar.com/opinion/editorialopinion/2012/06/09/aboriginal_representation_at_the_supreme_court.html>.
[4] Office of the Commissioner for Federal Judicial Affairs Canada, “Statistics regarding Judicial Applicants and Appointees” (last modified 29 Oct 2021), Government of Canada, online: <www.fja.gc.ca/appointments-nominations/StatisticsCandidate-StatistiquesCandidat-2021-eng.html>.
[5] Supreme Court of Canada, “The Honourable Michelle O’Bonsawin” (last modified 11 Jan 2023), Supreme Court of Canada, online: <www.scc-csc.ca/judges-juges/bio-eng.aspx?id=michelle-obonsawin>.
[6] Chris Brown, “Alberta government fills court vacancies in Calgary, Edmonton” (10 Feb 2023), Chat News Today, online: <chatnewstoday.ca/2023/02/10/alberta-government-fills-court-vacancies-in-calgary-edmonton/>.
[7] Keith Crowe, “Comprehensive Land Claims: Modern Treaties” (last modified 11 Jul 2019), The Canadian Encyclopedia, online: <www.thecanadianencyclopedia.ca/en/article/comprehensive-land-claims-modern-treaties>.
[8] Supra note 1 at 258.
[9] Nation to Nation, “There needs to be 3 Indigenous judges sitting on Supreme Court of Canada: professor” (25 Feb 2021), APTN National News, online: <www.aptnnews.ca/national-news/there-needs-to-be-3-indigenous-judges-sitting-on-supreme-court-of-canada-professor/>.
[10] Supra note 3.