Judges must reflect us all
The Trudeau government has made a solid start toward making Canada’s judges more reflective of the population as a whole. But given the track record of the former Conservative government, there’s an awfully long way to go.
In its first crop of 15 appointments and promotions of judges, the government included 10 women and two names from visible minorities. Hardly revolutionary in 2016, but it’s a welcome change from the trend of the past few years.
Women and, to an even greater degree, visible minorities are significantly under-represented among Canada’s judges. Far from recognizing this as a problem and taking steps to address it, the Harper government did virtually nothing during most of its tenure.
During one five-year period it appointed only three judges who were not white out of 200 first-time appointments, according to a survey by the University of Ottawa in 2014. And at one point, former justice minister Peter MacKay lamely tried to explain away the shortage of female appointees as the result of female lawyers choosing their children over a demanding job.
The result was that virtually no progress was made in making Canada’s federally appointed judiciary more diverse, and, in some areas, ground was actually lost. It was a sorry track record and the Liberals are quite right to address it head on.
Why does it matter? As things stand now, much of the population does not see itself well-represented among one of the most influential and respected groups in society.
That diminishes the legitimacy of the courts in the eyes of many people. And given the overrepresentation of some minority groups — such as indigenous and black people — before the criminal courts, those communities are more likely to have little confidence in the system.
This is not a matter of tokenism or of privileging gender and race over legal expertise. It is beyond belief at this point that only white, male lawyers can meet the standard of professional skill, experience and integrity to qualify for appointment to the bench.
No less an authority than Canada’s chief justice, Beverley McLachlin, has underscored the importance of this issue. “Many people, particularly women and visible minorities, may have less than complete trust in a system composed exclusively or predominantly of middle-aged white men in pinstriped trousers,” she told a legal conference in 2012. The Canadian Bar Association has made similar comments.
In fact, there has been significant progress for women on the bench. Women now make up about 40 per cent of lawyers in Canada, and just over a third of federally appointed judges are female.
It’s short of parity, but the trend has been generally going in the right direction. And the Trudeau government’s decision to include 10 highly qualified women among its first 15 judicial appointments sends a strong signal that it is determined to tip the balance.
The situation is far worse when it comes to representation of visible minorities in the judiciary. One survey in 2012, by Ryerson University’s Diversity Institute, found that a paltry 2.3 per cent of federally appointed judges in Ontario were from minority communities, while 15 per cent of practicing lawyers in the province have minority backgrounds.
Other surveys show a broadly similar lack of diversity in other courts across the country, both federal and provincial. The Harper government showed a studied indifference to this state of affairs, and refused requests even to compile relevant statistics.
It’s important, then, that Justice Minister Jody Wilson-Raybould’s first appointees include two with minority backgrounds. Justice Jonathon George, an Ojibway from southwestern Ontario, was promoted from the Ontario Court of Justice to the Superior Court in London. And Douglas Mah, who is Chinese Canadian, was appointed to the Alberta Court of Queen’s Bench. At the same time, Lucy McSweeney, the Children’s Lawyer of Ontario and an activist on LGBTQ issues, was named to Ontario Superior Court.
It will take time to redress the imbalances in the judiciary, and to make sure people from all backgrounds have the expertise, experience and opportunity to take on the responsibility of serving as judges.
But for that to happen, it also takes a government that is conscious of the importance of having a judiciary that is more broadly representative of the whole population. The Trudeau government has made a good beginning.
The Trudeau government has made a solid start toward making judiciary more diverse