Diversity and the Judiciary: Who is the Bench Representing Anyway?

Justice Bora Laskin, the first Jewish Supreme Court of Canada (“SCC)” jurist, was appointed in 1970. Justice Bertha Wilson was appointed to the SCC bench in 1982 as the first woman, which  laid the groundwork for greater diversity in the Canadian judiciary. Currently, four out of the nine seats are filled by women. That being said, there has still not been an individual appointed to the bench who is a member of a faith outside of Judeo-Christianity, from a racialized or visible minority community, or who is openly homosexual.

Just days before Justice Michael Tulloch entered the history books as the first black person appointed to the Ontario Court of appeal, Ryerson University’s Diversity institute published startling statistics on the makeup of the Canadian bench. Justice Tulloch’s appointment is and will continue to be celebrated in the years to come, but his appointment is juxtaposed against Ryerson’s report. Hopefully this stark contrast will signal to the government that something is not right. Perhaps this will become the catalyst for change. Or perhaps I’m being trying to see the water glass as half full when it is clearly nearly empty.

A Representative Judiciary

The courts adjudicating Canadian issues in no way reflect the country’s population – one that is inherently diverse. The only statutory requirement imposed on the makeup of any bench is that the Supreme Court must have at least three judges from Quebec. There is a convention that three are from Ontario, one is from Atlantic Canada, and two are from Western Canada. We have regional diversity, but otherwise, a fairly homogeneous bunch.

The benches of lower courts, as outlined by the Diversity Institute, are less than representative of the population at large. One third of federally appointed judges and 32% of provincially appointed judges are women, as compared to 51% in the population and approximately 40% of practicing lawyers. This is a marked improvement from the days of Justice Wilson, but still not parity. Only 2.3% of federally appointed judges (the institute analysed) are visible minorities. The appointments in Ontario are a slight improvement at 10.9%.

So Clearly it’s Not Diverse, But Do We Even Need a Representative Bench?

The court has historically been able to reach beyond its own set of experiences to adjudicate. For example, despite a lack of aboriginal members of the SCC, the Court issued landmark rulings in many aboriginal cases (see R v Calder [1996] 1 SCR 660, R v Sparrow [1990] 1 SCR 1075 and R v Van der Peet [1996] 2 SCR 507). Relying on external perspectives and representatives from aboriginal communities, the court in these instances valued the aboriginal perspective without having firsthand knowledge of what it is like to be a member of an aboriginal community.

That being said, there are several reasons why it is of the utmost importance to have a more representative bench. Two reasons were described by Dean Sossin at the “Improving Representation in the Judiciary: A Diversity Strategy” panel held at Ryerson on June 27, 2012 (they are also described in his paper). In essence, the reasons are those of reflection and action. First, a society looks to public institutions to be reflective of itself. Additionally, seeing someone “like you” in a position of power and esteem inspires individuals to ascend to greatness. The second reason posits that the exercise of adjudication should reflect the values of the community. Diverse backgrounds and perspectives will enhance the efficacy of the decisions and bring a deeper understanding to some of the issues before them in court.

I add that these varied perspectives may even extend beyond the ability to issue landmark rulings like Calder and Sparrow. While not criticizing the decisions in these cases, I believe that the decisions could have been more comprehensive. It is possible that the court with a unique perspective would have been able to add more depth in deliberations. I am sure that having a woman in the room when Justice Wilson was appointed shaped the conversation just as the first aboriginal appointment will shape the conversation.

On the other hand, there is an ironic restraint placed on judges from actually mentioning that they are drawing on personal experiences when issuing judgments. An African Canadian judge in R v R.D.S [1997] 3 SCR 484. was trying a case which had conflicting testimony from an African-Canadian youth and a police officer. The judge sided with the youth because she was aware of cases, especially those that dealt with non-white groups, whereby police officers overreacted. This case was appealed to the SCC whereby the Court had to determine whether the remarks the judge made gave rise to a reasonable apprehension of bias. Justice Cory in a very divided court explained, “although her remarks were inappropriate, they did not give rise to a reasonable apprehension of bias.” This signals to judges that one can have these beliefs but cannot pen them in decisions. These paradoxes of wanting a judge to be able to draw on personal experiences without it biasing a decision and wanting judges to be able to draw on past experiences but wanting our jurists to be able to empathize and extend beyond personal experiences clouds the water of this representative bench even further.

Public confidence in Canadian jurists is a reason for judicial diversity that Sonia Lawrence highlights in her paper Reflections: On Judicial Diversity and Judicial Independence. I urge you to think back to the article the Globe and Mail published in April: Of 100 New Federally Appointed Judges, 98 are White. If it does not decrease your confidence in the justice system, it should at least make you pause. The Globe probed, “the lack of diversity among judges raises searching questions in a country where one in five citizens  belongs to visible minority and where many people can expect to see a bench that does not reflect them.” The judiciary is the safeguard in upholding democracy, it is quintessential that the public have confidence in it. The lack of diversity has certainly raised some eyebrows as to the efficacy of the “white club” that has become the bench.

If the bench is not diverse, then concerns are raised about the court’s credibility. On the same note, if it is believed that appointments are made based on one’s background and not on one’s merit, then it similar concerns with respect to credibility of the court are raised again. This is the delicate line that must be walked when discussing judicial diversity.

Can Anything be Done?

If you flip back to the numbers that Ryerson put out (2.3% of federally appointed judges and 10.9% of Ontario appointments are visible minorities), Ontario is more adept at diversifying the judges it appoints. This is likely because the Ontario Judicial Appointments Advisory Committee (JAAC), the body that recommends judicial appointments, encourages applications from women, aboriginal peoples, francophones, persons with disabilities and ethno-cultural minorities. When assessing candidates, the JAAC is sensitive to the issue of underrepresentation of these groups. It states that merit is the primary concern, and so the weight placed on diversity is an unknown variable. Despite this improvement over federal appointments, the number is still wanting. This disparity is likely a function of the way in which the JAAC appeals to candidates.

An Australian paper[1] exploring gender representation on the bench identified that when considering judicial office, one of the most influential reasons to consider applying is that of a “tap on the shoulder.” Such action is defined as either someone on the court or from the government encouraging a prospective jurist to apply. A barrier that JAAC identified in the lack of diversity is that not enough individuals from equity seeking groups apply. Applying Wayne Gretzkey’s catechism (that is hanging as a motivational poster in my grade ten math class), “you miss a hundred percent of the shots you don’t take.” In order to increase the diversity, more people from diverse backgrounds need to apply. The JAAC advertises in magazines and professional applications urging women and minorities to apply, but as the Australian study identified, this is an ineffective tool. The question then becomes, how does one get other judges and government officials to start tapping shoulders.

The Pipeline is Problematic

In order to become a judge you need to be a practicing lawyer for ten years. There are many steps that must first be met: you need to graduate high school, receive a post secondary education, write the LSAT, gain admittance into law school, secure an articling position, pass your province’s bar examination… This is not simply an issue in the legal profession. It is systemic, and if there are any groups marginalized along the way (which Ryerson has calculated that there are), the likelihood of being appointed is minimized. The study acknowledges this as an issue in developing a pipeline. Appointments are often based on career experience in either senior government positions (Crown attorneys, senior public lawyers, senior leaders of law schools and governing bodies) or firm partnerships; neither of these make up the career profiles of many practicing visible minorities.

In order to make meaningful improvements to the diversity on the bench, steps must be   taken along each stage of the pipeline, to pave the way for appointments. Another inherent limitation, which I suppose further perpetuates the problem, is that it is more difficult for individuals to aspire to positions without seeing “someone like them” in the position. This creates, and I hate to use the cliché, a Catch 22, making it incredibly difficult to break the system.

Programs such as LAWS (Law in Action Within Schools) and the Aboriginal youth summer program seek to repair the pipeline issue in the high school years. LAWS partners with both the University of Toronto Law School and Osgoode Hall Law School to create an interactive legal education with inner-city high schools. Similarly, the two schools announced today that thirty-five aboriginal high school students will spend the next week learning about various aspects of the study of law and how they intertwine with aboriginal specific legal issues. The students will also get a taste of university while residing in U of T dorms, in classes at U of T led by students from both schools.  These two programs aim to address the earlier pipeline problems. The only way to fix the system is to start at the top so that an early age students are introduced to law, justice and various career options.

With that in mind, however, the end of the pipeline can also go for a spruce up and need not be neglected – there are those from diverse backgrounds who have ascended in their legal careers and need to take the next step to become appointed. This is not a problem that can be solved in isolation, but must be tackled at all stages – which I concede is no easy task. In my position as a writer for TheCourt.ca, I will start at the later stage.

A Blogger’s Shoulder Tap

If you are a person who would be in a position to give a shoulder tap, start tapping and encouraging those excellent candidates who for some reason or another have not yet applied. Alternatively, members of the bar (with ten years of experience) reading this and deliberating whether or not to apply, and who are displeased with the appearance of the judiciary by not seeing “someone like you up on the bench as a role model,” I urge you to apply. Or those reading who have not yet reached the ten year requirement, please keep this at the back of your head when you do advance in your career. I may just be a law student, but consider this your shoulder tap. Apply. We do not know how many people are applying to positions on the federal benches (as Sonia Lawrence identified in her paper), the JAAC has identified this as a barrier. While there are other factors that must be addressed, a consistent one that can be more easily remedied is that the only way to see a more diverse bench is if people apply. Really, what’s the worst that could happen?