Aboriginal people are still without Supreme Court representation.

Author:Wolfson, Matthew

Prime Minister Trudeau's selection of Justice Malcolm Rowe to the Supreme Court of Canada marks the first judicial appointment from Newfoundland and Labrador. Prior to this, on August 2, 2016, the Prime Minister announced that an advisory board would recommend a shortlist of candidates based on a new selection process. Any lawyer or judge who met the criteria of the Supreme Court Act could apply.

The Prime Minister's aim was to draw candidates who would bring greater representation to the minorities of Canada. One of the ways he was to achieve this end was by requiring candidates to be functionally bilingual. It is curious that with this aim in mind, the Prime Minister appointed a jurist from the east coast rather than appointing the first Aboriginal jurist.

In 1999, the Supreme Court of Canada released its decision in R. v. Gladue, instructing the lower courts to take Aboriginal background into consideration when sentencing, exactly as the Criminal Code requires. Thirteen years later, in the case of R. v. Ipeelee, the Court had to remind everyone that it meant what it said in R. v. Gladue, and that it is an error in law to not consider an offender's Aboriginal background.

In Ipeelee, Justice LeBel stated for the Supreme Court:

Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. . . To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. This excerpt should remind us that we still have a long way to go in recognizing the impact that inter-generational trauma has on Aboriginal communities and, in turn, on our criminal justice system. It should remind us that Aboriginals still have reason to be distrustful of that system. After all, our country was founded by a Prime Minister who endorsed a policy for residential schools and stated,

"When the school is on the reserve, the child lives with its parents, who are savages, and though he may learn to read and write, his habits and training mode of thought are Indian. He is simply a savage who can read and write."

It is easy to imagine why many Aboriginal youth would not want to buy into a country that...

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