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Lack of Indigenous judge hasn’t hurt fairness of high court rulings, chief justice says

First Nations lawyers disagree, saying court lacks important perspective.

PHOTO: Supreme Court Justice Richard Wagner says he thinks the court's judges should reflect Canadian society, but he doesn't think the absence of a First Nations member prevents it from ruling fairly on such matters. (CBC)

Supreme Court Justice Richard Wagner says he thinks the court’s judges should reflect Canadian society, but he doesn’t think the absence of a First Nations member prevents it from ruling fairly on such matters.

As a spot opens up on the bench in the Supreme Court of Canada, its top judge says he doesn’t think the lack of First Nations representation affects its ability to rule fairly.

“I wouldn’t say that,” Chief Justice Richard Wagner said in an interview with CBC New Brunswick about whether there is a gap in the court’s ability to understand First Nations’ perspectives in the decisions it arrives at.

“I think the court has shown for the last 35 years that we had pretty good knowledge of the problems with the Indigenous communities and were able to correct things if they needed to be corrected according to the evidence that was put forward.

“So even though there … was never an Indigenous judge on the court, nevertheless the court was able to release significant judgments in favour of recognition and reconciliation in a way with the Indigenous people.”

At the same time, Wagner said, he thinks all Canadians should see themselves reflected in the country’s institutions, including in its courts.

“I think the court should reflect the society, and that means diversity.

“So that’s why for for many years now, I always supported diversity on the bench. It’s a question of credibility, and it’s to make sure that people will still keep their faith in the justice system.”

Wagner said there are examples of the court ruling in favour of First Nations in the past, despite the absence of a First Nations judge on the bench. (Aniekan Etuhube/CBC)

Wagner’s comments come just days after Prime Minister Justin Trudeau announced his government had launched the process to select a new Supreme Court judge to fill the opening that will be left by the coming retirement of Justice Michael J. Moldaver.

According to information on the website for the Prime Minister’s Office, interested candidates must submit an application package no later than May 13.

The Supreme Court of Canada consists of nine judges, including a chief justice, according to the website.

They are all appointed by the governor in council and must have been either a judge of a superior court or a member of at least 10 years’ standing of the bar of a province or territory.

On Thursday, U.S. federal judge Ketanji Brown Jackson was confirmed as a Supreme Court justice, making history as the first Black woman to reach the top court.

In Canada, a First Nations judge has never been appointed to the Supreme Court since its creation in 1875.

Representing all of Canada’s legal orders

Drew Lafond, president of the Indigenous Bar Association in Canada, said it’s disappointing that Wagner doesn’t think the lack of a First Nations judge has impacted the Supreme Court’s ability to properly rule on cases involving First Nations.

Lafond said he wondered what Wagner would say if the same question were posed about the appointment of Québécois judges.

Under the Constitution, three of the nine seats on the Supreme Court must be filled by judges from Quebec, he said.

“Accepting, as we all must, that Canada is a multi-juridical country comprised of Indigenous laws, the common law and civil law, it follows that it’s the Supreme Court of Canada’s responsibility to steward the development of those laws and legal orders,” Lafond said.

“And the [Supreme] Court must rightly put in the hands of the people who are of those legal orders. So we have representatives from the common law and who are trained in that regard. We have individuals who have expertise in civil law.

“What we’re lacking is anybody who has real in-depth and qualified knowledge about Indigenous law, and that’s part and parcel of what comes with the lack of Indigenous representation at the Supreme Court of Canada.”

Including First Nations perspective

Naiomi Metallic, chancellor’s chair of Aboriginal lLaw and policy the Dalhousie University law school, said it’s time for the appointment of a First Nations judge to the Supreme Court to ensure cases are handled through a lens that better understands First Nations culture.

“Lawyers bring forth evidence, and that’s important,” Metallic said. “But we all see that evidence through lenses, right? We are all informed by the background and history that we have.

“Here we at the Supreme Court have a panel of nine …and they speak to each other, and they and they, they teach things to each other … and that’s why it’s so important to have diversity, because you don’t know what you don’t know.”

With files from Harry Forestell




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