The Supreme Court, Functional Bilingualism, and the Indigenous Candidate: Reconciling the Bench

Abstract

The recent reforms to the Supreme Court of Canada appointment process have created potential barriers to Indigenous candidates. This article reviews the appointment process and its two objectives of functional bilingualism and increased diversity. Given the lack of progress on diversity, particularly with respect to Indigenous representation, a rebalancing of appointment criteria is required. Reconciliation, in both the legal and evolving public policy sense, requires Indigenous participation in legal institutions. Furthermore, arguments in favour of functional bilingualism, such as specific legal expertise and incorporation of distinct cultural viewpoints, transfer seamlessly to Indigenous and other minority representation at the Supreme Court. The functional bilingualism requirement should remain, but accommodation for Indigenous candidates is integral to reconciliation.