Visible minorities are significantly less likely to become federal judges compared to straight, white men and are noticeably absent from the judicial selection process, a new report by Ryerson University’s Diversity Institute shows.
The report, released during a panel discussion at the Ted Rogers School of Management in Toronto on June 27, shows 2.3 per cent of federally appointed judges are visible minorities.
Of those, none sit at the Supreme Court of Canada. However, the numbers rise to 5.5 per cent for courts of appeal. In Ontario, the numbers are slightly higher at 10.9 per cent.
The issue arises as the federal government named the first black judge at the Ontario Court of Appeal last month with the appointment of Justice Michael Tulloch.
“The intake of a broad range of individuals with different backgrounds and perspectives is absolutely fundamental to a representative judiciary,” said Wendy Cukier, vice president of research and innovation at Ryerson University.
“But as the numbers show, barriers still exist and the tools that are in place once they are in the judiciaries are crude to say the least. Representation is a cornerstone of democracy and the public trust of the court depends on it.”
The Diversity Institute’s 2012 report on improving representation in the judiciary is part of a multi-year study on diversity in the legal sector.
The report looks at all levels of the federal and provincial courts and sampled more than 100 provincially and federally appointed judges to determine the numbers from gay, racialized, female, and other communities, including people with disabilities.
The report found the number of visible minority judges both provincially and federally has remained relatively stagnant or has decreased slightly over the last several years.
Shalini Konanur, executive director of the South Asian Legal Clinic and a panellist at the discussion, said the low representation could be due to a lack of data and resources at the application phase of the federal and provincial judicial appointment process.
“We have to take ownership of the fact that we need more data on this topic if we want the judiciary to be something that is open to the diversity of our country,” said Konanur.
“Right now, the process is not transparent and clients are left feeling like they aren’t being heard or understood when they step in front of a judge. We also need to make sure young lawyers are given the tools they need to access the application process from the beginning.”
In Ontario, the provincial judicial appointments advisory committee is responsible for processing judicial applications.
It includes seven lay members appointed by the attorney general and an additional two appointed by the chief justice of the Ontario Court of Justice.
While it must reflect the diversity of Ontario’s population, it doesn’t have to recommend a specific number of diverse individuals for judicial positions.
In contrast, the Office of the Commissioner for Federal Judicial Affairs Canada receives applications for federal judicial appointments on behalf of the justice minister.
The process has received significant media attention in recent years with critics pointing to a lack of diversity as a serious problem at the Federal Court.
The report does show a contrasting trend, however. It notes the number of female judges both provincially and federally has been increasing in the last several years.
Currently, one-third of federally appointed judges and 32 per cent of provincially appointed members of the bench are women, according to the report.
Arleen Huggins, vice president of the Canadian Association of Black Lawyers, said the difference is likely a result of government action.
“There are more women on the bench today because the government decided it was an issue and got behind it,” said Huggins.
“We have to hold our government accountable for the same treatment when it comes to other groups because that list of potential judges ultimately ends up with them. Right now, unfortunately, there’s no process to ensure that happens.”
Immanuel Lanzaderas, director of the Federation of Asian Canadian Lawyers, agreed. He said there should be more accountability for diversity on the bench.
“I think we’ll see success when the conversations we are having today take place in the rooms where decisions are made,” said Lanzaderas. “We need to stop having diversified groups of people groping to be accepted on an ad hoc basis.
The government needs to take some initiative with that.”
In the meantime, Ken Fredeen, general counsel for Deloitte & Touche LLP, said corporate counsel should do their part to reach out to potential talent from minority communities.
“It’s important that we have this discussion, but these changes aren’t going to happen overnight,” said Fredeen.
“Corporations and corporate counsel need to start looking at who they are hiring and making an effort to consider all groups of potential candidates and take responsibility for their role, too.”
Still, Law Society of Upper Canada Treasurer Laurie Pawlitza said there are some things individuals from minority communities can do.
“I think the question is how, in our current system, we can make sure visible minorities get the same expertise and access as members of what’s been referred to today as the old boys’ club,” said Pawlitza.
“I think you can come from an unsophisticated background like I did and make it work but you have to expand your connections and realize the days of being plucked from the pack are pretty much over.
If you want to become a judge, you have to apply. And I think we need to help visible minorities see that.”
Until then, Lorne Sossin, dean of Osgoode Hall Law School, said the legal community shouldn’t lose sight of why it became concerned with judicial diversity in the first place.
“If we don’t care about the actual judgments that come from an increase in the number of diverse individuals on the bench, then we’re really only looking at half the story,” said Sossin.
“Diversity is not just a desirable goal to be thrown around, it’s a constitutional principle. We have to not only look at who’s making our judicial decisions but what type of decisions they are making.
We shouldn’t just have diversity for diversity’s sake. If you are wronged by the bench because of bias, then that should be an issue.”
