On July 25th, I had the honour and privilege of taking part in the Justice Committee question and answer session with the nominee to the Supreme Court of Canada, the Honourable Nicholas Kasirer.
Here is part of what I said and asked Justice Kasirer:
"Congratulations Justice Kasirer on your appointment, I think you are eminently qualified for this position. I too was particularly struck, and pleased, by your comment in your questionnaire regarding working in the spirit of bijuralism and seeing both the Civil law and Common law in a unique Canadian dialogue, and potentially with other legal traditions, including Indigenous law.
"This is a topic that is close to my heart. I have a blended extended family. My Auntie Vi, Vina Starr was the first female Indigenous lawyer called to the bar in British Columbia in 1987 (not so long ago) and was one of the founding members of the Indigenous Bar Association. I have an Indigenous sister who has been raised with a firm grounding in both her own Indigenous Laws and in Canadian Law. She has just transitioned from a 25 year career in law enforcement, to a career in the legal profession, as a lawyer practicing Aboriginal law.
"We have a disproportionate number of Indigenous people involved with the justice system and I am not referring to judges on the Supreme Court. This is not a positive involvement.
"My question is this: with respect to Canada’s commitment to Reconciliation, in which the Truth and Reconciliation Commission urges our country’s legal system to be transformed, how would you incorporate Indigenous laws and perspectives into Canadian jurisprudence?
What are your thoughts on the need to consider and incorporate Indigenous laws, legal traditions and practices into decisions involving Indigenous Treaty, Title and Rights cases?"
I was told by the moderator that my questions were on the thin line of being inappropriate. We were instructed to not ask Justice Kasirer questions about controversial issues, about past judgements or about cases that might be before the courts.
Justice Kasirer responded that he understood that in regard to Indigenous legal traditions there were multiple traditions. He said that the Supreme Court of Canada understands that it must make space for Aboriginal title. He said that in terms of over-representation in the justice system, the Supreme Court has taken a strong position with the Gladue and Ipeelee cases along with the amendment to section 7.18 of the criminal code which has had a strong impact across the country.
I followed up with a question about the make-up of the Supreme Court of Canada: "The Supreme Court is made up of three Justices from Quebec, three Justices from Ontario, two from the West and one from Atlantic Canada. Many Indigenous and non-Indigenous lawyers, academics, judges, Indigenous leaders and peoples have expressed the need for an addition to Supreme Court of Canada requirements which sets out that at least one Supreme Court Justice be Indigenous and knowledgeable in Indigenous law and legal traditions. How do you think a potential Indigenous Justice position could strengthen the Supreme Court and what positive impacts would the inclusion of this addition have on decisions dealing with Indigenous issues?"
Justice Kasirer responded that he was there as the candidate for the Supreme Court, but he found this aspirational argument compelling.
Fair enough. I learned at the meeting earlier in the day that there were twelve applicants for this Supreme Court of Canada position. Only one of those applicants was a women, and none were Indigenous. As a society we need to do more to bring diversity to the Supreme Court of Canada.
I appreciate being invited to take part in this public process, and I appreciate that the consultation process for nominations to the Supreme Court of Canada has been broadened, but ultimately this nomination was still at the sole discretion of the Prime Minister. The Prime Minister was not compelled to heed the advice of the advisory board and we do not know if he nominated the advisory board's first choice. I believe that decisions of this kind should be far more open and democratic, with the decision about the nomination left to an advisory board of qualified, independent citizens, without a veto from the Prime Minister.
I do believe that Justice Kasirer is eminently qualified to be a Justice of the Supreme Court of Canada and I wish him all the best in his new position.