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Hope for Indigenous Supreme Court justice swells as appointment recommendations loom

Chief Justice of the Supreme Court of Canada Beverley McLachlin leads the rest of the justices through the Senate Chamber after the delivery of the Speech from the Throne in December 2015. Justice McLachlin has announced her intention to retire effective December 15.

CHRIS WATTIE/REUTERS

Prime Minister Justin Trudeau is set to receive a short list of three to five candidates for the Supreme Court from an advisory committee Monday, and hopes are high in the aboriginal community for the first Indigenous appointment to the country's top court.

The position is open because Chief Justice Beverley McLachlin has announced her retirement, effective Dec. 15. Chief Justice McLachlin has been outspoken off the bench about injustices done to Indigenous peoples – saying publicly that Canada committed "cultural genocide" through its residential-schools policy – and on the bench, she has led an expansion of Indigenous rights.

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Mr. Trudeau has stressed reconciliation between Indigenous and non-Indigenous Canadians. He appointed the first Indigenous attorney-general, and he told the United Nations General Assembly last month that Canada's relationship with its First Nations has been one of humiliation, neglect and abuse.

The pool of highly qualified Indigenous candidates is relatively small. Limiting that pool, candidates must be from the West or North, according to Mr. Trudeau's written instructions to the advisory committee, which is drafting the short list. He allows for a variety of connections to those regions: "bar membership, judicial appointment, or other relationship." He has also said candidates must be functionally bilingual in English and French.

The advisory committee of five women and two men is chaired by former Progressive Conservative prime minister Kim Campbell.

In the legal community, the two names of Indigenous jurists most frequently mentioned are John Borrows and Mary Ellen Turpel-Lafond, who is bilingual. Prof. Borrows has been studying French during a sabbatical year spent partly in Montreal. Both have doctorates in law, both have published several books and both have wide experience of Canada, having worked and taught in several provinces. Ontario Superior Court Justice Todd Ducharme, who is Métis, and who also serves as a judge in Nunavut, Yukon and the Northwest Territories, has applied, according to a source.

Prof. Borrows is the Canada Research Chair in Indigenous Law at the University of Victoria. His background is Anishinabe/Ojibway; he is a member of the Chippewa of the Nawash First Nation in Ontario. Ms. Turpel-Lafond is a Saskatchewan Provincial Court judge who took a leave to be the Representative for Children and Youth in British Columbia, a position she held for 10 years. She is a member of the Muskeg Lake Cree Nation in Saskatchewan. She is still on leave from her job as a judge, a court spokeswoman said.

The Globe and Mail approached Prof. Borrows and Ms. Turpel-Lafond to ask whether they are candidates for the Supreme Court. Last year, when the court had a vacancy, The Globe asked them the same question and they each said no. But this time, Ms. Turpel-Lafond declined to comment. Prof. Borrows was cryptic. "I am still diligently working on and prioritizing the Indigenous-law degree we are developing at UVic," he said in an e-mail in late September. When The Globe asked him to clarify if that meant he wasn't a candidate, he did not reply. The Globe asked him again this month and has not received a response.

Prof. Borrows appears to be a fit with Mr. Trudeau's oft-mentioned dream of reconciliation. At the University of Victoria, he is spearheading the development of Canada's first Indigenous-law program, to be blended with study of the common law. The program, which still needs certain approvals, is to be modelled after McGill's integrated common-law, civil-law program, which brings together legal traditions based on English precedent and the Quebec civil code.

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"He's almost creating a body of reconciliation," Vancouver lawyer Merle Alexander, a partner in the Vancouver offices of Gowling, an international law firm, said in an interview. Mr. Alexander is from the Kitasoo/Xai'xais First Nation in the mid-coastal area of B.C.

"He really looks for ways to try to harmonize or find true reconciliation between Canadian Indigenous law and the common law. That's almost life purpose. There's never really been a voice like that."

He also has a wide background in several legal disciplines, including Canadian constitutional law, and he has taught in the United States, Australia and New Zealand.

"John has made it his mission I think to teach in every area of law that exists," Gordon Christie, who teaches at the University of British Columbia's Allard School of Law, said in an interview. "I think he's tried to teach every kind of course in the law school. He likes to know everything about everything, which is quite a mission."

Ms. Turpel-Lafond has a reputation for outspokenness and independence. As the Representative for Children and Youth in B.C., she often found herself in public confrontations with the provincial government over child-protection issues.

"She was out front all the time; she was vocal and she made the points she thought should be made in a forceful way," retired judge Ted Hughes said in an interview. (It was on his recommendation that B.C. created the post, which Ms. Turpel-Lafond was the first to fill.)

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In the Indigenous community, the feeling is that the combination of talented jurists and a seeming push from Ottawa on First Nations issues means their time may have come.

Val Napoleon is a law professor at the University of Victoria who is working with Prof. Borrows on the proposed Indigenous-law program, as well as a member of the Saulteau First Nation in northeast B.C. She stressed the importance of having an Indigenous judge on the Supreme Court.

"Canada is multijuridical," she said. "There are Indigenous legal traditions along with civil and common law, and an Indigenous Supreme Court judge would bring another legal perspective and another set of tools and way of understanding human problems to the table."

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