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Bilingualism requirement makes it difficult to appoint Indigenous judge to top court, MPs hear

'The committee was very keen to, if possible, find an Indigenous candidate'

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OTTAWA — Canada’s top court is about to have its first person of colour with the appointment of Justice Mahmud Jamal, but the head of the advisory board that reviews applications said there are still obstacles to overcome before Canada may see its first Indigenous judge on the Supreme Court.

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Former Prime Minister Kim Campbell, who heads the seven-member board that creates a shortlist for the government, told MPs on Tuesday that it remains difficult to find an Indigenous candidate who is functional in both English and French, and has been a judge long enough to be considered for the highest posting in the country. On top of that, the government also strives to keep a regional and gender balance on the court.

“The committee was very keen to, if possible, find an Indigenous candidate,” Campbell told the House of Commons justice committee on Tuesday. But she said there is “still the challenge of language.”

“I do believe that within the next four or five years, we will see an Indigenous candidate on the Supreme Court of Canada,” Campbell said.

The Liberal government has committed to only appointing functionally bilingual judges to the Supreme Court, and just last week it introduced legislation called Bill C-32 that would enshrine this requirement as law.

“If you’re a judge in a superior court across the country, you have access to free French classes,” said Melanie Joly, the minister of official languages, in an interview with the National Post in February. “So if you want to become bilingual, you can actually become bilingual if that’s a priority for you because you want to become a Supreme Court justice.”

Campbell said she believes the courts are doing better when it comes to diversity, and that includes bringing more Indigenous people into the judiciary. Having now chaired the advisory board for the past four Supreme Court justice nominations, Campbell said she’s seen more Indigenous people coming forward with applications.

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Justice Minister David Lametti told the committee that he’s been working to appoint and elevate more Indigenous people as judges.

“I’ve done that, appointing Indigenous justices to the superior courts and elevating currently-sitting superior court judges to the courts of appeal,” Lametti said. “It’s a priority for us as well to make sure that that representation, at its earliest possible point, also extends to the Supreme Court of Canada.”

Of the 18 candidate applications they reviewed this time, seven self-identified as a visible minority, five as Indigenous, one as LGBTQ, and none as having disabilities, Campbell told the committee. The advisory board sent a shortlist to Prime Minister Justin Trudeau, who then made his choice in consultation with Lametti. Campbell did not say how many Indigenous candidates, if any, were on the shortlist.

The next Supreme Court vacancy is likely to arise in 2022, when Justice Michael Moldaver reaches the mandatory retirement age.

• Email: bplatt@postmedia.com | Twitter: btaplatt

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