How Trudeau can bring diversity to Supreme Court
Let’s be clear: Justice Malcolm Rowe will probably to be a fine Supreme Court of Canada justice, if not one of the finest on that bench. His small-town roots, training and experience as an international lawyer, and activist tendencies all make him exceptionally suited to the task.
That he rose to the top of the prime minister’s new appointments process is telling, as are his thoughtful and erudite answers to the Independent Advisory Board’s questionnaire.
But let’s also be clear: The appointment of Justice Rowe is a missed opportunity to make our Supreme Court more diverse and inclusive and, in doing so, more reflective of a modern Canada. Though the prime minister has made diversity in federal judicial appointments a priority, including charging the Independent Advisory Board to expressly consider diversity, there is no denying that Justice Rowe (despite being Newfoundland’s first Supreme Court justice) is not the diversity candidate many had in mind.
There are some critics of the prime minister’s call for a more diverse judiciary who assert that appointing an aboriginal or visible minority to the Supreme Court is “identity politics.”
That simply isn’t the case — no matter how much pride aboriginals or Canada’s diverse communities may have felt with the appointment of “one of their own” as a judge, it’s unlikely many from those communities would cast their ballot in the next election simply because of the appointment.
The issues facing Canada’s First Nations, new immigrants and racialized communities are just too nuanced to be solved with a single appointment. In fact, the demand by some politicians that Justice Thomas Cromwell’s replacement be an Atlantic Canadian (and the corresponding litigation to try to constitutionalize the issue) is the kind of identity politics we should avoid: it plays to Canada’s regional and historical insecurities and ignores the modern reality of Canada, which is far more urban and diverse then when our regional conventions were first established.
So, can this missed opportunity be salvaged? Yes, if the prime minister takes four steps.
First, he should make clear that Justice Rowe was appointed because he was the best Canadian for the job, not the best Atlantic Canadian. In doing so, he would affirm that his next appointment in September 2018 does not have to be from British Columbia (since Chief Justice Beverly McLachlin, who will retire then, notionally holds that seat on the Court), leaving open the possibility of appointing an aboriginal or minority judge from outside B.C.
In particular, the current convention does not allow for the appointment of a Northern Canadian, even though the courts in the territories are some of the most diverse in Canada.
Second, the prime minister should publish demographic statistics of the applicants for this appointment. How many women applied? Self-identified minorities? Aboriginals? Non-Atlantic Canadians? How many judges? How many lawyers? The problem with promising diverse appointments is that the talent pool at the senior levels of the bar or on the trial and appeal benches may simply not be there. Demographic statistics allow the government and the legal profession to consider where more work must be done to create a pool of good, diverse candidates.
Third, the prime minister should revisit (though not necessarily reconsider) the “functional bilingualism” requirement. Potential applicants have two years to immerse themselves in French-language training. But the government should test whether the bilingualism requirement had a disproportionate impact on aboriginal and immigrant communities, where French-language education may not have been a priority for their parents.
Finally, the prime minister should disproportionally fill the 60 other judicial vacancies with qualified women, aboriginal and minority judges. A more diverse Supreme Court is, in many ways, symbolic. The real work of the justice system happens in our trial courts — that may be the only interaction many Canadians have with a judge.
After every hearing, the Court’s justices gather over lunch to discuss their views on the appeal. The appointment of Bertha Wilson in 1982 surely changed the discussion around that table about many issues, including perhaps most importantly abortion, gender rights and spousal abuse.
The appointment of an aboriginal or minority judge will have the same impact, providing a much needed perspective on novel issues facing an increasingly diverse Canada and in an age of truth and reconciliation. Our justice system is the finest the world has ever known. But, sometimes, not only must justice be done, it must also be seen to be done.