Law groups push for diversity in judiciary
Letter to justice minister says ‘racial composition … does not reflect diversity of Canada’
As the push for equity and racial justice sweeps across all sectors of society, lawyers and legal organizations are calling for the federal government to take a hard look at the lack of diversity among the country’s judiciary.
In a letter to Justice Minister David Lametti sent Monday, 36 bar associations, legal clinics and advocacy groups are urging Ottawa to fill all six current vacancies on the Federal Court with Black, Indigenous and People of Colour judges.
They also recommend the revision of assessment criteria for judicial appointments to recognize systemic barriers faced by BIPOC candidates, such as the bilingualism requirement.
“It is undeniable that the current racial composition of our federal courts does not reflect the diversity of Canada,” said the letter, spearheaded by the Canadian Association of Refugee Lawyers.
“The legacy of centuries of institutional racism has led to a dominantly white federal bench making decisions governing the actions and behaviours of BIPOC communities, without ever having experienced the prejudices and racial biases faced by these communities.”
There are currently two BIPOC judges — one Indigenous and one of Kurdish heritage — in the roster of 44 judges in the Federal Court, where immigration and refugee and Indigenous cases, mostly involving visible minorities, make up 63 per cent of the dockets.
Despite the Liberal government’s commitments to racial inclusion, both the Federal Court of Appeal and the Supreme Court of Canada continue to be completely white benches, the groups said.
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Under the Liberal government’s previous mandate, between 2016 and last October, of all new federal judicial appointments — including those to the provincial superior and appellant courts, only three per cent self-identified as Indigenous, with eight per cent being visible minorities. Their representation was far behind the 27 per cent of Canadians who are BIPOC.
“The people sitting on the bench look incredibly different than the people appearing before them. Increasingly there’s this glaring disconnect,” said Anthony Navaneelan, vicepresident of the refugee lawyer association.
“This summer, thanks to the protests we’re seeing on systemic racism, it gave us a shot in the arm that we really needed to look around at our own backyard and to say justice doesn’t only have to be done, but has to be seen to be done.”
Navaneelan, who is of Tamil background and self-identifies as brown, is the first lawyer in his family; his parents fled unrests in Sri Lanka in 1981 to Ireland before settling in Newfoundland in 1983.
“As a member of the bar, it’s hard to go before the court and time and time again never get to see someone up on that bench who looks like you,” he said.
“If the person on the bench doesn’t understand or hasn’t been in the same position of the person that you are representing, then your task is doubled … You are trying to translate for them the experience of your client in the terms that they will understand.”
In 2016, Ottawa “professionalized” the court appointment process from what many considered a patronage system by establishing judicial advisory committees to screen and recommend candidates. Officials also began tracking applicants’ ethnocultural backgrounds, as well as disabilities and sexual orientation.
In 2019, there were 17 BIPOC applicants recommended to the Attorney General for court appointments. Out of 86 new federal and provincial judges appointed, only two were Indigenous persons and only four were from visible minority groups.
However, officials said progress has been made under the government’s new mandate. Of the 64 new appointments made since December, 38 appointments (59 per cent) have been women; two (three per cent) are Indigenous; 12 (19 per cent) are visible minorities and six (nine per cent) identify as LGBTQ.
Candidates are asked which court they prefer to serve, and there is a special requirement for the federal courts that they must agree to live in Ottawa. Who gets selected also depends on whether the person’s expertise is in need on the bench at the time.
“The face of Canada’s judiciary has changed considerably since our government took office, reflecting our appointment of highly meritorious jurists who bring with them a broad range of backgrounds, experiences and perspectives,” said Rachel Rappaport, press secretary of Lametti.
“We are committed to having a judiciary that looks more like Canada, one in which all Canadians can see themselves reflected … There is no doubt that there is more work ahead to continue seeing these numbers rise, but we are on the right track.”
Laura Sharp, a board member of the Indigenous Bar Association, lamented that there is currently no Indigenous judge at the appellate level on any court in Canada after the recent retirement of former Justice Leonard S. Mandamin from the Federal Court of Appeal.
“Those courts decide many of the most important cases involving Indigenous Peoples — including Aboriginal rights, treaty rights and land claims,” said Sharp, whose organization endorses the letter.
“Ottawa can and must do better in order for the federal courts to adequately serve Indigenous Peoples and the Canadian public at large.”
Many BIPOC justices have cited bilingualism requirement as an obstacle to appointments to the Supreme Court, where three of the nine judges must also come from Quebec. Although being bilingual is not mandatory for Federal Court and appeal court appointments, it is still part of the competence assessment criteria.
“Not every single judge has to be bilingual in order to have a strong Federal Court. You are screening out other diversities that are equally important,” said Navaneelan. “A better balance has to be struck.”
Calling judges “gatekeepers” of the administration of justice, Fareeda Adam, staff lawyer at the Black Legal Action Centre, another signatory to the letter, said now is the time to act and overcome the “trust deficit” in the Canadian judiciary.
“Until everyone has full confidence in our justice system,” she said, “it will be impossible for our communities to access justice in a meaningful way.”
Lametti is set to host a virtual forum this week on diversity on the bench.