Canada’s Newest Justice Minister: Cautious Optimism…
The 2015 Federal Election is certainly one for the history books. Not only did Canadians witness the meteoric rise of ppro Liberal Party, which appeared to have been all but dead after its defeat in 2011; we also saw the highest voter turnout since 1993, and record-breaking increases among youth and First Nations peoples. Indeed, this change of government has generated an air of excitement among many communities across Canada.
This honeymoon period has lasted well into last week, when Justin Trudeau was officially sworn in as Prime Minister, along with his new 31-member Cabinet. For the first time in Canadian history, Canada has a gender-balanced cabinet, the composition of which has been the source of much speculation and debate via social media. Some heralded it as a symbol of diversity, others as the embodiment of white male privilege.
However, another “first” for Canada has also received considerable attention, not least in the legal community: the appointment of Canada’s first Indigenous Minister of Justice, Jody Wilson-Raybould.
Known as “Puglaas,” which is Kwak’wala for “woman born to noble peoples,” Minister Wilson-Raybould was born in Vancouver to Bill Wilson, a First Nations politician and lawyer, and Sandra Wilson, a school teacher. After earning her law degree in 2000 from the University of British Columbia, Minister Wilson-Raybould began her career as a Crown Prosecutor in Vancouver’s Downtown Eastside – a neighbourhood notorious for its rampant poverty, drug use, sex trade, crime, and violence. After working in the trenches for nearly four years, Minister Wilson-Raybould made the shift towards politics, gaining considerable exposure to issues affecting modern Indigenous treaty negotiations as a Commissioner for the British Columbia Treaty Commission. In 2009, she was elected Regional Chief of the British Columbia Assembly of First Nations, where she devoted herself to the advancement of First Nations governance, fair access to land resources, and improved education and individual health. She held this position until June 2015, when she opted instead to run as a Liberal MP candidate for Vancouver Granville – a riding she won with nearly 45% of the popular vote.
On November 3, 2015, she was sworn in as the new Federal Minister of Justice and the Attorney General of Canada. In this capacity, she will act as the head of the country’s Department of Justice, the top-prosecuting officer in Canada, and the government’s chief legal adviser.
While it is far too early to speculate on the exact nature of the changes we can expect to see from the new Attorney General of Canada, this brief analysis will aim to unpack and explore some of the wider opportunities and challenges we can expect Minister Wilson-Raybould to face in her tenure over the next four years.
For many, Minister Wilson-Raybould’s appointment is a source of excitement. As a former Crown Prosecutor, she brings a wealth of experience to her new role, and her understanding of the various perspectives at play within the Canadian legal system will be an asset as she looks to deal with the day’s most challenging issues: physician-assisted suicide, Bill C-51, the legalization marijuana, and reassessing the dominant “tough on crime” model, just to name a few. In Minister Wilson-Raybould, the country has a person of intellect and personal fortitude occupying such an important role.
However, what makes her appointment particularly significant is her Indigeneity. Not only is she a descendant of the Musgamagw Tsawataineuk and Laich-Kwil-Tach peoples, but she has been a strong advocate for Indigenous rights and issues throughout her political career. Her role as a Regional Chief of the BC Assembly of First Nations has allowed her to meaningfully engage with marginalized Indigenous communities with respect to the profound issues they continue to face, and the opportunity to be a mouthpiece of her People before the House of Commons, the Senate, the British Columbia Legislature, and a host of other important international and non-governmental organizations. Her active involvement in the Idle No More movement in 2013 – where “she and other First Nations leaders sat across the table from then-Prime Minister Stephen Harper and his team in Ottawa” – has only increased her willingness to fight towards achieving a just reconciliation, and a more meaningful relationship with the Federal Crown. Indeed, her new political role will provide her many of the tools to do just that.
With that in mind, one area in which we can expect some movement is in that of criminal sentencing. In a recent interview, Minister Wilson-Raybould discussed her exposure to the “overrepresentation of Indigenous people in the Criminal justice system,” and the serious and damaging effect that mandatory minimums (and other sentencing rules) can have a serious and damaging effect on historically disadvantaged groups. This early on in her tenure, she has already given indications of a shift away from the Harper government’s “tough-on-crime” approach, towards one which places a greater emphasis on rehabilitation and restorative justice. This is particularly timely, as the Supreme Court of Canada is scheduled to hear the appeal of a decision involving the refusal of a BC judge to impose a mandatory one-year sentence on an accused drug offender. Although there is no indication of any change in the Attorney General’s position in that particular matter as of yet, there is reason to be hopeful for positive, longer-term changes in the area of sentencing; looking less at punishment, and more at long-term strategies to decrease recidivism and encourage the restoration of community relationships.
The same can be said for the questions surrounding the alarmingly high (and growing) number of missing and murdered and murdered Indigenous women (“MMIW”) – that which Minister Wilson-Raybould (along with many other Canadian politicians) has described as “a national and international disgrace.” Throughout its campaign, the Liberal Party has promised to immediately launch a national public inquiry into missing and murdered Indigenous women and girls in Canada. Given her background and sensitivities to this issue, we can expect Minister Wilson-Raybould to take command in making this issue a priority early on in her tenure.
On a broader level, there is a certain symbolic value surrounding the appointment of an Indigenous person to the position of Justice Minister. Despite the traditionally adversarial relationship between the First Nations and the Crown, especially in that which relates to law and justice, Minister Wilson-Raybould’s role in Cabinet is reason to be hopeful for positive change from within this new government. In her, the Department of Justice has a formidable leader who understands the socio-economic, systemic roots of the problems plaguing Indigenous peoples, and is uniquely placed to help bring about effective and lasting solutions from a legal perspective. As put by Osgoode Professor Signa Daum Shanks:
I have great faith in her experience navigating difficult waters. If some people haven’t heard of her before, I am confident that they will be wowed by her natural abilities, which have been strengthened by her background: that of a female Regional Chief for all of British Columbia who has been elected for two-terms in a traditionally male-dominated environment. She has a lot of experience as a ‘diplomatico’ – and possibly the best one in the Trudeau cabinet.
Despite this initial optimism, it is nonetheless important to reflect upon the position that Minister Wilson-Raybould now occupies, and be cognizant of the challenges that she will likely face in her tenure as Attorney General of Canada. First and foremost, the change in government has left a number of outstanding legal questions that will need to be addressed quickly by the new Minister of Justice. In addition to those described above, questions relating to cooperative federalism, court appointments, and the continuing development of section 35(1) of the Constitution Act, 1982 continue to be persistent issues that warrant require attention from the Department of Justice and the Prime Minister’s Office. Minister Wilson-Raybould will certainly have her work cut out for her in that regard.
This is particularly so given this period of governmental transition. So soon after taking over from a Harper government that was in power for nearly ten years, the new Liberal majority is in the process of finding its political feet. At this early stage, we should not expect a swift and immediate overhaul of Canada’s justice system (not to suggest that this is necessarily warranted in the first place). A “wait-and-see” approach is the more probable strategy from the Trudeau government, and we can expect it to take its time in reviewing all available and appropriate options before incrementally bringing forward the changes it sees fit. The benefits of this strategy are known to political strategists, and was most recently endorsed by a coalition of First Nations and advocacy organizations in the context of MMIW. Pointing to the problems identified in BC’s own inquiry on the subject, the coalition urges Trudeau’s government to “take lessons from BC’s failures,” and to be cautious in finding the proper solutions to the significant issues ahead.
A similar point can be made regarding Canada’s Department of Justice – a monumental institution staffed by thousands of seasoned lawyers and policy advisors, and embedded with its own internal bureaucracies and practices. Although Minister Wilson-Raybould will now be at its helm, it would be imprudent to suggest that she will have the capacity to make wholesale modifications to the operation of her Ministry this early on. There is only so much one person can do in a short span of time – even someone as qualified as Minister Wilson-Raybould. Moreover, we must also remind ourselves that the law has a limited role in addressing and remedying the roots of socio-legal issues.
Moreover, the exact nature of her function should also be borne in mind when thinking about Minister Wilson-Raybould’s new position. She is (among other things) an advocate for and representative of Indigenous peoples in Parliament, a Liberal party member, a representative of the Vancouver Granville riding, and the Minister of Justice. The many hats she must wear, and the plurality of interests she has to balance in her political capacity ought to be kept in mind before making grand assertions of what she will do for the Canadian legal system. This point was taken one step further by Ryerson Professor Pamela Palmater, who recently wrote about why Trudeau was right not to appoint a First Nations minister of Indigenous Affairs. Among the various topics addressed in her article is the role of Crown representatives, which remain centered around serving first and foremost the interests of the Crown “whether the person is First Nation or not.” The crux of her reasoning is that the Cabinet ministers are fundamentally representatives of the Crown’s interests – interests which, as she sets out, are at odds with those of the First Nations. Minister Wilson-Raybould is, in essence, bound by the government’s objectives, (notwithstanding her capacity to help shape them for good).
In other words, we cannot and should not expect the new Minister of Justice to achieve all of her laudable goals and objectives overnight. Although she maintains an enormously significant role in Canadian legal system, and has generated a fair degree of enthusiasm in many socio-political circles across the country, awareness of the institutional and structural limitations she will face over the course of the next four years is essential to speculating as to what her legacy may be. Placing unrealistic expectations on her would be both imprudent and counter-intuitive. As a legal community looking forward to what is ahead, we must give Minister Wilson-Raybould the time she needs to bring about the changes we need.
All things considered, Prime Minister Trudeau’s government is starting off on the right foot with the appointment of Minister Wilson-Raybould – an experienced, just, and attentive advocate. I, for one, am looking forward to seeing how her perspectives will shape the administration of justice in this country, and tackle some of the biggest issues of the day. Despite any challenges that lay ahead – and there will be challenges – the legal community can and should be anticipating a good four years under her aegis.