Judicial diversity stats show move in right direction but more needs to be done: observers

Law360 Canada (December 7, 2020, 9:41 AM EST) -- The federal government’s statistics on appointments to Canada’s superior courts show that strides have been made to increase diversity but creating a judiciary which more closely resembles Canada will take time and effort, legal observers say.

In October 2016, Ottawa reformed the superior court appointment process, which mandated the Office of the Commissioner for Judicial Affairs collect and publish statistics and demographic information on judicial applicants and appointees. And the current numbers, which cover applications and appointments for the year ending Oct. 28 (which saw 60 judges being elevated to superior courts across the country), show that 35 per cent of appointees were male and 65 per cent were female. Three per cent of appointees were Indigenous, and 17 per cent of new judges were members of visible minority communities. Individuals identifying as being a member of the LGBTQ community represented 10 per cent of the appointees.

Canadian Bar Association (CBA) president Brad Regehr said the stats have improved vis-à-vis woman applicants and appointees, but the same level of improvement isn’t being seen in terms of Indigenous people, racialized communities and candidates with disabilities.

“Our big issue is that we want to see people appointed on the basis of merit but also that the judiciary reflect the diversity of our country, and I think the current government has definitely heard us on that so we see that as a positive step,” he said. “But I think it would go a long way to improving people’s confidence in the administration of justice and their confidence in the judicial system if they see people who look like them or are like them sitting in those important positions. The legal system, the judiciary, is an important component of our democracy and it should be reflective of our society, but unfortunately right now it just isn’t.”

Ontario Bar Association (OBA) president Charlene Theodore agreed the latest stats do point to better representation on the bench, but agreed the lack of diversity in the judiciary is a problem that needs to be tackled.

“I think that what we have seen as Canadians after the summer we are really starting to look at racial diversity in all of our institutions, and the judiciary is no exception,” she said. “Right now, the decisions are made by a very knowledgeable but overwhelmingly white and male judiciary. They need to be able to understand not just the legal principles behind a case but the actual facts that gave rise to whatever dispute they are looking at in its proper context — and I would say the same if they were all male justices and we were talking about women’s issues.”

Both Regehr and Theodore said increasing the number of candidates from equity-seeking groups is needed, noting both their organizations have taken steps to help in this area by setting up mentorship programs and forums where sitting judges share their experiences with potential applicants.

“I’ve had some people tell me the application process was very onerous, and I have had others saying it was not — I haven’t done it, so I don’t know what is entailed there,” said Regehr. “I know it takes some work to put it together, but people may feel it is not worth their time to do. And it could also be that people look at the judiciary and think it is not reflective of me, so why should I apply because I won’t get appointed anyway.”

Trevor Farrow, a professor at Osgoode Hall law school who specializes in access to justice issues, agreed that a more diverse bench was a laudable goal and said that “justice needs not only to be done but also seen to be done.”

“Having a bench that can understand and empathize with the issues before it is important,” he said. “We know from judicial reasons and legal education efforts that an appreciation of social context matters, and one aspect of a collective judicial appreciation for social context is an inclusion of that context on the bench itself — so there is an incredibly important element to this that will quite frankly make our judges and their judgments more reflective and responsive to the community which they are serving.”

Some critics of the process have said judicial appointments should solely be based on merit, regardless of other factors. But Farrow said that is “typically a very false argument.”

“Nothing in the diversity conversation challenges the importance of independence and impartiality, but we have known for a number of years now that in order to do real justice judges and the courts need to be able to see the actual people in front of them as opposed to objectifying some notion of a person who does not reflect all aspects of Canada,” he said. “Put simply, judges need to be able to see bias and racism and respond to it — so, doing justice actually requires judges see people as opposed to pretending we can somehow whitewash those in front of the court.”

Theodore said everybody wants the most qualified people on that bench “but you cannot live in a country as diverse as Canada and have an all-male institution and say you have the best.”

“If you have a predominantly white male institution and you say you are only looking for the best people, what is it you are saying about women lawyers? What are you saying about Black or Indigenous lawyers?” she said. “Diversity in appointments does not mean a relaxing of any standard of excellence that we hold for our judiciary.”

Rachel Rappaport, press secretary for Justice Minister David Lametti, said the government is proud of the “transparent and accountable appointment process we have put into place to identify outstanding judicial candidates.”

“The face of Canada’s judiciary has changed considerably since our government took office — reflecting our appointment of highly meritorious jurists who bring with them a broad range of backgrounds, experiences and perspectives,” she said. “We are committed to having a judiciary that looks more like Canada — one in which all Canadians can see themselves reflected. We are proud of the results thus far. There is no doubt that there is more work ahead to continue seeing these numbers rise, but we are on the right track.”

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.