THE IBA CONGRATULATES THE HONOURABLE MAHMUD JAMAL ON HIS APPOINTMENT TO THE SUPREME COURT OF CANADA & ENCOURAGES CANADA TO TAKE IMMEDIATE ACTION TO REMOVE SYSTEMIC BARRIERS THAT CONTINUE TO EXCLUDE INDIGENOUS JURISTS

For Immediate Release

Sunday June 20, 2021

Ottawa, ONT – The Indigenous Bar Association in Canada (the “IBA”) congratulates the Honourable Mahmud Jamal on his appointment to the Supreme Court of Canada. Born in Kenya, Justice Jamal has the historic distinction of being the first person of colour to be appointed to the Supreme Court of Canada (the “SCC”). The IBA is confident that Justice Jamal’s perspectives and lived experience will play a crucial role in the decisions of Canada’s highest court. He is a formidable candidate to serve in the prominent role previously held by the Honourable Rosalie Abella.

“It is essential that Canadian courts—and in particular Canada’s highest court—begin to better reflect the diversity of Canadian society and citizens who it is meant to serve,” said IBA Vice President, Brooks Arcand-Paul. “In its entire 146-year history, the fact that a person of colour has never been appointed to the Supreme Court of Canada is an appalling gap. It is past time this glaring lack of diversity be rectified.”

While the IBA celebrates that Canada has—finally—appointed a person of colour to the Supreme Court, the continued exclusion of Indigenous Peoples from serving as judges of the SCC remains an aberration for Canada’s legal system. Specifically, in its entire 146-year history, the SCC has never counted an Indigenous jurist among its members.

The IBA has long advocated for increased representation of Indigenous voices at all levels of court—including the SCC—in part because it is important for Indigenous Peoples to see themselves represented in the judiciary, and also because a greater understanding of Indigenous law is critical to achieving justice for Indigenous Peoples in Canada.

The IBA has repeatedly offered to work with the federal government to remove systemic barriers that continue to exclude and de-value Indigenous experiences and perspectives in the selection process. Problematically, rather than working to remove these systemic issues, the federal government has further entrenched them by introducing amendments to the Official Languages Act to legislate the bilingual French requirement for candidates (a factor that the IBA and its members have long identified as excluding qualified Indigenous candidates),[1] and has refused to take any action to implement systemic reform.

In particular, Chief Justice Wagner’s comments about increasing diversity on the bench succinctly strike the heart of the matter when he says that “it would be in the best interests of society . . . that Indigenous people be appointed eventually.”[2]  But if not today, when? How long do Indigenous People in Canada need to wait? The continued absence of an Indigenous judge from the SCC calls into question Canada’s commitment to recognize Indigenous Peoples as full partners in the Canadian federation.

“The repeated refrain that there just aren’t enough Indigenous candidates applying to the Supreme Court begins to wear thin when, time after time, the IBA sees the deep pool of qualified Indigenous judges, lawyers, and academics be passed over,” remarked Mr. Arcand-Paul. “If Canada is serious about advancing reconciliation with Indigenous Peoples in Canada—and on the eve of the Senate passing Bill C-15: An Act Respecting the United Nations Declaration on the Rights of Indigenous Peoples—we cannot let another 146 years go by without an Indigenous person on Canada’s highest court.”

The IBA extends our congratulations to the Honourable Mahmud Jamal on this historic occasion, and hopes that this is only the first step towards increasing diversity and inclusion on the SCC, so that in the years to come, Canada’s highest court begins to truly reflect the legal pluralism and diverse society that it is meant to serve.


[1] See for example, APTN, March 25, 2021, “Trudeau’s language requirement at the Supreme Court discriminates against Indigenous judges: Justice Harry LaForme”, online: https://www.aptnnews.ca/national-news/trudeaus-language-requirement-at-supreme-court-discriminates-against-indigenous-judges-justice-harry-laforme/

[2] Toronto Star, June 17, 2021, “Mahmud Jamal becomes the first person of colour appointed to the Supreme Court of Canada,” online: https://www.thestar.com/politics/federal/2021/06/17/mahmud-jamal-becomes-the-first-person-of-colour-appointed-to-the-supreme-court-of-canada.html