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Key moment for the future of French at the Supreme Court

Since taking office in 2015, Prime Minister Justin Trudeau has appointed three men and one woman to the Supreme Court and replaced Beverley McLachlin with Quebec Judge Richard Wagner as Chief Justice. In doing so, he respected the principle of alternating between a common law specialist and a civil lawyer at the head of Canada’s highest court.

As promised, the government has also made sure to appoint judges who are sufficiently bilingual to hear cases in either official language. On the other hand, over the course of the current Liberal reign, gender parity has taken a back seat and Mr. Trudeau has not carried out the project to appoint, for the first time in the history of Canada, a jurist from the First Nations. in the highest court in the land.

In both respects, Justin Trudeau’s record on the Supreme Court front stands out against his rhetoric on inclusion and reconciliation.

Over the coming weeks, the Prime Minister will have the opportunity to correct one or the other of these tables. This could be his last chance to remedy the historical absence of an Aboriginal perspective within the Supreme Court.

Once the position that Ontario Judge Michael Moldaver leaves on June 1er next September will be filled, there may not be another vacancy around the table of nine judges until 2028.

You don’t need to be a prophet to predict that, by then, Justin Trudeau could either have voluntarily retired from politics or been forced into it by an electoral defeat.

The appointment of a unilingual but nevertheless aboriginal judge would have the effect of enshrining English as the only common language of the highest court in the country.

In principle, many elements are in place to allow the Prime Minister to break the glass ceiling that has hitherto been encountered by aboriginal jurists.

The next Supreme Court nominee will be chosen from among the members of the Law Society of Ontario. The latter has significantly more members than that of the eight other provinces that have common law in common, which should normally lead to a greater number of candidates who correspond in whole or in part to the profile sought.

Under Justin Trudeau, it is an independent committee that initially screens aspirants to the post of Supreme Court judge. The Prime Minister makes his choice from the list that this group submits to him.

Among those tasked with finding a successor to Justice Moldaver is, for the first time, a member appointed by the Indigenous Bar Association. This is David Nahwegahbow, a founding member of a firm specializing in aboriginal law. And Konrad Sioui, former Grand Chief (Francophone) of the Huron-Wendat nation, is also part of the group.

With two First Nations voices on the committee, the Indigenous perspective should be heard. We can hope that the same will be true for linguistic competence.

Many Indigenous leaders believe that the bilingualism requirement imposed on those who aspire to sit on Canada’s highest court is detrimental to Indigenous candidates. Former Assembly of First Nations Chief Perry Bellegarde agreed, as did former Quebec NDP MP Romeo Saganash.

When Mary Simon was appointed Governor General last year, Justin Trudeau implicitly endorsed this argument. He held that even though Mme Simon barely mastered a few rudiments of French, she had the necessary qualities to become the first representative of the queen to come from the First Nations.

However, many saw in this appointment a major breach on the front of official bilingualism.

The position of Governor General is largely honorary and embodies an institution with which Quebec and the Franco-Canadian communities have little or no chemistry.

The situation is quite different with the Supreme Court, where the appointment of a unilingual but nevertheless Aboriginal judge would have the effect of enshrining English as the only common language for the functioning of the highest court in the country.

If every advance on the front of reconciliation with the Aboriginal nations were to go through a decline in the place of French within Canadian institutions, we would quickly return to square one in terms of national disunity.

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