Picking our top court is all about exclusion

Supreme Court diversity nothing but a con game

If you were hoping to take advantage of the federal government’s new self-nomination process for appointments to the Supreme Court of Canada, and you have not already done so, you’re too late: the deadline was this week. But never mind. The whole thing may be unconstitutional anyway.

The rumblings started the moment it was announced the “independent, non-partisan” advisory board charged with recommending a list of candidates for the position soon to be vacated by Justice Thomas Cromwell would be permitted to consider applicants “from across Canada.” Problem: Cromwell is from Nova Scotia. And Atlantic Canada has always had a seat on the court — a custom, a convention, even a guarantee, depending on your point of view.

It isn’t that Atlantic Canadians have been excluded from consideration. Indeed, the prime minister’s mandate letter to members of the advisory board instructs that “the custom of regional representation on the Court” should be “one of the factors to be taken into consideration.”

But there’s no guarantee of it. And you know what that means.

The change has been attacked by Liberal and Conservative political leaders in the region. The Canadian Bar Association has asked the government to reconsider, while the Law Society of Newfoundland and Labrador has warned, darkly, that “given the constitutional nature of this convention it is possible litigation may ensue.” Of late it has become an issue in the federal Conservative leadership race, with possible contenders Lisa Raitt and Peter MacKay, both originally from Nova Scotia, vying for who could take the greatest umbrage on behalf of their region: was it a “slap in the face” (Raitt) or a “spit in our eye” (MacKay)?

If this sounds like a story pitting the federal government’s broad-minded search for the most meritorious candidates against the parochialism of Atlantic Canadian politicians, think again.

The same policy that directs the advisory board to consider candidates from across Canada also compels it to recommend only those who are “functionally bilingual,” while enjoining it to “support the government of Canada’s intent to achieve a gender- balanced Supreme Court of Canada that also reflects the diversity of members of Canadian society.”

All that has happened is that one axis of “diversity” has been displaced by another; in place of region, seats on the court will now be allotted by sex and race. In the rock- paper- scissors game of identity politics, Atlantic Canadians lost out; that is all. “If it’s possible,” the Globe and Mail’s Sean Fine quoted a Liberal insider on the search for Cromwell’s replacement, “they’re going to give it to a female, bilingual, visible minority.”

That rather limits the choice of possible candidates, even before you add the requirement that it be drawn from a region with six per cent of the country’s population.

Well, so be it, I suppose. Tough luck, Atlantic Canada. Just so long as nobody thinks some question of principle is involved. MacKay and others would be in a better place to complain about the intrusion of bilingualism as a requirement, and the many fine jurists this would exclude from consideration ( needlessly: the court employs some of the country’s best translators, for which judges working in their second language would seem a poor substitute), if they were not arguing for precisely the same thing with respect to region. But then, the Liberals’ commitment to diversity would be a lot more admirable if they were not so coldbloodedly selective about it.

It isn’t only region that is left out of the government’s definition. The advisory board’s terms of reference lists “Indigenous peoples, persons with disabilities and members of linguistic, ethnic, and other minority communities,” including gender identity or sexual orientation.

But it leaves out a hundred other possible markers: age, religion and so on. Only bilingualism is absolutely required: should a bilingual white candidate, then, be preferred over a unilingual aboriginal person? As Osgoode Hall law dean Lorne Sossin notes, delicately, “privileging one vision of diversity over others is a challenging prospect in the Canada of 2016.”

But that’s the con at the heart of the diversity game. Proponents try to argue that no compromise with the merit principle is involved, on the grounds that diversity itself is a form of merit: people from different backgrounds bring different life experiences to bear, and the perspectives that go with them. That’s no doubt true as far as it goes.

But it isn’t possible to represent every identity group on a nine-member court. The choice of which to let in is inevitably an arbitrary, not to say ruthless process, one not of inclusion but exclusion.

There’s a certain reductionism in defining people solely in terms of one or even two dimensions of identity. Each of us is the unique intersection of any number of different group identities. To elevate the relatively trivial differences between different groups over the profound differences between us as individuals can only be achieved by ascribing a false homogeneity to members of the same group: as if there were a woman’s view of the law, or a man’s for that matter. It is the very opposite of diversity.

This is about more than the judiciary. The whole human project is premised on the idea of empathy: the ability, or at any rate the obligation, of each of us to try to put ourselves in other people’s shoes, whatever their background.

That’s a valid quality to look for in a prospective judge. Their gene count is not.