Indigenous people must lead way in making Canada's legal system just: CBA President Brad Regehr

  • October 14, 2020

Cree lawyer became 1st Indigenous president of Canadian Bar Association last month

From CBC Radio

The first Indigenous lawyer to become head of the Canadian Bar Association says reconciliation will be difficult to achieve unless we have uncomfortable conversations about how the justice system impacts Indigenous people.

"To be frank, our legal system has not treated Indigenous people, in my view, fairly," said Brad Regehr, a Cree lawyer who was appointed president of the association last month. It is the largest professional association of lawyers in Canada.

He told The Current's Matt Galloway that Canada's justice system needs improvement.

"I know that there are people working on it. I don't want to downplay any of that. But we're going to need further changes," Regehr said.

"And they can't be led by non-Indigenous people. Indigenous people have to be involved in working out these changes, and they have to be involved in leading it."

Regehr pointed to several historical examples of how Canada's legal system has mistreated Indigenous people — from the Sixties Scoop to residential schools, to a 1927 amendment to the Indian Act that prevented lawyers from representing Indigenous people in land disputes.

"This only ended in 1951," he added.

"Canada's made up of three legal traditions: the French civil law, English common law and Indigenous legal traditions. And unfortunately, the legal traditions haven't been given their fair shake."

That imbalance can still be seen today.

Supreme Court 'does not reflect' Canada: Regehr

Of Canada's 44 federal judges, for example, two identify as Indigenous or as a person of colour.

Regehr said the lack of diversity among federal judges is problematic.

"That does not reflect the makeup of Canada," he said. "And you can go across the country — whether you're looking at provincial courts, territorial courts or superior courts, or courts of appeal, it's going to be the same thing."

Various systemic barriers may be getting in the way of Canada having a bench that is more reflective of its population, Regehr added.

He said the application process to become a judge can be extremely onerous for some people, and those who apply are also required to have references who are judges — something not everyone has.

He sees that as systemic racism.

"It's not one of those things where there is overt racism. It's just that there are hidden barriers," Regehr said.

He explained that many Indigenous lawyers who come into the profession don't come from a family legacy in which their parents were also working within the justice system. Some may come from communities where education has been a challenge.

"Right off the bat, they've got hurdles to cross that other people don't."

He said he wants to see the government make more of an effort to diversify the courts in Canada. 

And he's not alone.

Open letter calls for change

In September, 36 law organizations penned a letter to the justice minister, calling for the government to fill the Federal Court of Canada's six vacancies with judges who are Black, Indigenous or people of colour. 

The Canadian Bar Association later joined that call, and has expressed concern about the requirement that all Supreme Court judges be bilingual in French and English.

"In our view, it's going to exclude candidates from the BIPOC [Black, Indigenous and people of colour] community," Regehr said.

Canada's bilingualism rate was 17.9 per cent in 2011, according to data from Statistics Canada. But that number was far lower for Indigenous people, at 10.5 per cent.

"Trying to find people who are legally trained … there tends to be a focus on either recruiting or appointing from one of the provincial courts of appeal or often law professors," Regehr said.

"Your pool is getting smaller and smaller and smaller, and then trying to find an Indigenous person who is officially bilingual, who comes out of that pool, it's really difficult."

However, Regehr is optimistic about change.

"I've done my best to be a [glass half] full kind of person. Sometimes it's hard not to switch to have the [glass half] empty viewpoint when, you know, you become frustrated and when you see things," he said.

"But I am hopeful that in our country, things are going the right way. 

"I'm just hoping that it can actually be implemented."