The Supreme Court of Canada’s Reference re Supreme Court Act decision in 2014 nullifying the appointment of Justice Nadon to the court is of importance to Indigenous people seeking justice through the Canadian court system.
Since 1875 there has been a requirement that a certain number of seats on the Supreme Court be reserved for Quebec. There is no equivalent requirement that any seats on the court be reserved for Indigenous people.
The majority of the Supreme Court in the Nadon decision concluded that Justice Nadon was ineligible for one of the Quebec seats because at the time of his appointment he was not a member of the Quebec bench or the Quebec bar.
Importantly, the court held that one of the purposes for Quebec seats on the court was to “ensure that Quebec’s distinct legal traditions and social values are represented on the court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights.”
The court’s reasoning in the Nadon decision lends support to calls for Indigenous appointments to the Supreme Court. The composition of the Supreme Court rightly recognizes Quebec’s special place in confederation. There is no historical, legal or principled justification for not also recognizing the special place of Indigenous people.
Respect for the distinct legal traditions and social values of Indigenous people has been enshrined through section 35 of the constitution. Persistent government denial of Indigenous rights has forced Indigenous people into the Canadian court system in search of justice with the Supreme Court as the final arbiter of their rights. To enhance Indigenous people’s confidence in the Canadian legal system and to ensure the recognition of the distinct legal traditions and social values of Indigenous people, qualified Indigenous people should be appointed to the Supreme Court.
This issue remains an important subject of national debate, especially amid the revitalization of Indigenous legal orders across the country and courts’ increasing engagement with Indigenous law in their judgments. Unfortunately, the federal government has not lived up to its lofty rhetoric. It has continued to bypass qualified Indigenous candidates for the Supreme Court based on the flimsy excuse that they have not done their time as members of lower courts, ignoring the fact that non-Indigenous people have been appointed to the court without previous experience as judges. It has also exhibited a willingness to perpetuate systemic racism by insisting that qualified Indigenous candidates for the Supreme Court be “bilingual”—i.e., fluent in both English and French. The welcomed appointment of Mary Simon as Governor General underlines the federal government’s hypocrisy. Simon does not speak French. Any attempt to square Simon’s appointment as Governor General with the French language requirement for the Supreme Court is a peculiar Canadian exercise in cognitive dissonance.