In the past three and a half years, the federal government has appointed 100 new judges in provinces across the country – and 98 of them were white.
As Canada marks the 30th anniversary of the Charter of Rights and Freedoms – a document that enshrines the rights of equality and diversity – a Globe and Mail review of superior court appointments reveals at least one area that falls short: the very judiciary responsible for upholding and interpreting the country’s laws.
According to figures compiled by The Globe, the exceptions were two Métis judges appointed in B.C. and Nova Scotia. Only in the territories, where three aboriginal judges have been appointed since 2009, does the federal appointment process better reflect the community.
The lack of diversity among judges raises searching questions in a country where one in five citizens belongs to a visible minority and where many people can expect to see a bench that does not reflect them.
The opaque nature of the appointment process is equally startling. Judges with vast powers of interpretation under the Charter are still appointed behind closed doors. To obtain a glimpse of recent patterns, The Globe has used Internet searches and culled information from judicial sources and law firms where judicial appointees worked.
Advocates of minority appointments contend they have a profound effect on many levels, including the fact that judges learn about other perspectives by rubbing shoulders with colleagues from minority communities.
“As much as we would like to believe otherwise, justice is not blind,” said Naiomi Metallic, an aboriginal lawyer in Halifax. “While the law is objective, a person’s assessment of the facts, including another’s behaviour, motives and justifications, is inevitably coloured by who we are and where we come from.”
B. William Sundhu, a Canadian-born Sikh and former B.C. Provincial Court judge, said the lack of diversity reveals a system that pays lip service to equality. “The record of appointments ought to raise serious concerns about equality, legitimacy, representation and public confidence in the justice system and courts of the country,” Mr. Sundhu said.
A Justice Department spokesman, Julie Di Mambro, said that while the government has no statistics available on minority appointments, they reflect the recommendations of 17 judicial advisory committees across the country.
“Our government is guided by the principles of merit and legal excellence in the selection and appointment of judges,” she said.
However, one high-level member of a federally appointed court, who spoke on condition of anonymity, argued that the opacity of the process is disturbing – and that there is a great need for information about who is being appointed and why.
“The key stage of the federal process is so invisible that it is virtually impossible to determine if the objective of increased diversity is being given weight as a guiding principle – apart from occasional, general statements from the Ministers of Justice,” he said. “You are left trying to draw conclusions from the appointments themselves.”
At any given time, about 1,100 judges appointed by the federal government are serving on provincial superior courts, the Federal Court of Canada, Federal Court of Appeal, Tax Court of Canada and the Supreme Court of Canada.
The regional committees that vet applicants are composed largely of senior lawyers, judges and police or community members appointed by Ottawa. Those designated as “recommended” are put on a list that is debated in the Justice Department and at cabinet.
A half-dozen members of vetting committees did not respond to interview requests.
Jacob Ziegel, a University of Toronto law professor who specializes in the judicial appointment process, said federal governments have refused to open up the process.
“It is highly politicized,” Prof. Ziegel said. “I’ve been told by former cabinet ministers that they actually sit around the cabinet table debating who should be appointed to fill a vacancy. It is viewed as a very valuable means of rewarding your supporters.”
But this is neither new nor limited to political stripe, he cautioned. “This has been going on since Confederation,” he said. “Nor is it a party issue. The Liberals were every bit as bad as the Conservatives. Perhaps even worse.”
Irwin Cotler, a former Liberal justice minister, conceded that his government didn’t have a good process. “But I was trying to make it more transparent, democratic and accountable.” Mr. Cotler said he was committed to the idea of minority appointments, but he had a highly politicized appointment procedure.
The influence of powerful MPs and ministers on appointments in their home provinces is troubling, Mr. Cotler said. He said they lobby hard for candidates and have considerable say over who sits on judicial advisory committees.
Mr. Sundhu, who resigned from the bench after a 2006 incident in which he was intoxicated in public, has done research on judicial appointments for an academic paper. He found that, on a bench of 104 B.C. Provincial Court judges, fewer than six were members of visible-minority communities. He also discovered that after a flurry of minority appointments in the late 1990s, no minority judges were appointed between 2001 and 2008.
Mr. Sundhu said the status quo is often explained by suggesting that it is risky to appoint minority judges until the pool of candidates is larger; that it is only a matter of time. “Worse yet, someone will defensively point to a visible-minority judge in a position of responsibility as proof that their court is open and inclusive,” he said. “In reality, the structures of our modern judiciaries verge on a total ‘white-out.’”
In some locations, the pool of minority lawyers is modest. For example, just five per cent of Nova Scotia’s 2,000 lawyers belong to a visible minority; while a 2006 B.C. survey found that just 18 per cent of Vancouver’s lawyers were from a visible minority, compared to 42 per cent of the city’s population.
In Ontario, a similar survey conducted by the Law Society of Upper Canada in 2009 found that 693 of the province’s 20,000 lawyers were black. It found that 979 were Chinese, Japanese or Korean; 101 were Hispanic; 1,312 were South Asian; and 290 were of Arab or West Asian descent. The province had 281 aboriginal and 96 Métis lawyers.
One Superior Court judge, who is a member of a minority community, said governments simply can’t claim the pool of candidates is too shallow. “The same thing could have been said about women lawyers, but that didn’t stop a push that greatly increased the number of women judges at all levels of the courts – including the Supreme Court of Canada,” he said.
Under-represented groups, such as aboriginals, will remain that way until they have more role models on the bench, the judge said.
“If aboriginal youth see aboriginal judges at all levels of court, there is a greater chance that they will consider the law as a possible career path,” he said. “Unfortunately, in most Canadian courts, the face of Canadian justice that aboriginal people see is white.”