Jul 24, 2016

Prioritizing Racial Diversity in Judicial Appointments

Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 (CanLII)

Diversity matters. Not just for the optics of it, or because it's the right thing to do.

Having diversity at the heads of our social institutions, especially our judiciary, actually helps them do a better job. Diverse experiences, as a Canadian and as a lawyer, provide unique insights that other judges simply do not have. If you dispute that notion, it's better saved for another day.

Today we're dealing with a government that has made a commitment to diversity in the judiciary. The problem is that those commitments already appear contradictory. Although the lack of racial diversity in Canada is so bad that it's described as a "judiciary of whiteness," commitments to other forms of diversity might only accentuate the problem.

First, there's the government's commitment to gender diversity. A female appointee to the Supreme Court of Canada would create the first-even female majority. The government's recent appointments to lower courts illustrates that they are indeed committed to creating more gender balance in our courts. This is obviously a good thing.

Next, there is the Minister of Justice's Mandate Letter, issued by the Prime Minister last fall, which states the following,

  • Engage all parties in the House of Commons to ensure that the process of appointing Supreme Court Justices is transparent, inclusive and accountable to Canadians. Consultations should be undertaken with all relevant stakeholders and those appointed to the Supreme Court should be functionally bilingual. [emphasis added]

As important is bilingualism is important constitutionally, and useful in the judiciary, in an era of Google Translate and a myriad of other tools, it's not nearly as essential today as it was a century ago.

The Supreme Court Act already contains in s. 6 the requirement that a minimum of 3 of the Court's judges originate from Quebec, which ensures familiarity with the Civil Code and already encompasses the bilingual commitment to linguistic diversity. In 2008, the NDP introduced Bill C-232 to make bilingualism mandatory for Supreme Court appointees, but was never passed. The House debate lauded the improvements to access to justice and national unity that such a move would make, but there is scant consideration of the impact on other segments of the population.

Making this component a legal requirement though might be more challenging after the 2014 Reference re Supreme Court Act, where the Court confirmed the constitutional nature of the Court's composition and stated,

[104] Changes to the composition of the Supreme Court must comply with s. 41(d) of the Constitution Act, 1982. Sections 4(1), 5 and 6 of the Supreme Court Act codify the composition of and eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982. Of particular relevance is s. 6, which reflects the Court’s bijural character and represents the key to the historic bargain that created the Court in the first place. As we discussed above, the guarantee that one third of the Court’s judges would be chosen from Quebec ensured that civil law expertise and that Quebec’s legal traditions would be represented on the Court and that the confidence of Quebec in the Court would be enhanced. [emphasis added]

The converse holds true, and changing the historic bargain to strengthen bilingualism even further as a statutory requirement would likely require a constitutional amendment.

The problem is that an inordinate emphasis on bilingualism tends to exclude other diverse candidates, especially visible minorities. Even when they do speak a second, third or fourth language, it may not be one of the other official languages.

In the context of the current vacancy from Atlantic Canada, The Globe & Mail states,

...the search is proving to be a challenge.

...[T]here are no obvious bilingual stars among women on the region’s appeal courts (the most frequent source of Supreme Court judges) and in its law firms, more than a dozen legal observers in Atlantic Canada said in interviews. As for visible minority or indigenous judges, the pipeline was left largely empty by the former Conservative government.

And so Mr. Trudeau’s attention may yet turn to white males.

The bilingualism requirement is therefore one of the most regressive steps a government can take if intending to promote other forms of diversity.

What is needed is a recognition that diverse life experiences, especially as a racialized minority in Canada, is as significant in today's legal climate as bilingualism. Given the existing linguistic diversity of the Court, perhaps even more important.

Last month we invited the Justice Minister to meet with interested parties to discuss how judicial diversity can be properly achieved through an ad hoc organization called Lawyers for Representative Diversity. The signatories included the International Commission of Jurists Canada (ICJC), Federation of Asian Canadian Lawyers (FACL), the Roundtable of Diversity Associations (RODA), the Canadian Hispanic Bar Association (CHBA), the South Asian Bar Association (SABA), the Canadian Muslim Lawyers Association (CMLA), and the Canadian Association of Black Lawyers (CABL).

Having a diverse cabinet is just a start. But governments come and go. The independence and near permanence of a racially diverse judiciary should be the ultimate goal.