Law Times

Law Times • February 2, 2015 Page 7 www.lawtimesnews.com COMMENT Why judicial diversity matters By anna Wong For Law Times his past December's round of judicial appointments by Justice Minister Peter MacKay has put the issue of judicial diversity squarely back in the spotlight. The latest appointments follow a trend of predomi- nantly white male appointments that ref lect neither the diversity of the population served nor that of the legal profession. Canada has the highest proportion of immigrants among the G8 countries. In 2011, vis- ible minorities made up 19.1 per cent of the Canadian population, a number that rises to one in four among Ontarians. The number of visible minority lawyers has been on the rise as well: 17 per cent of lawyers in Ontario are visible minorities, up from 9.2 per cent in 2001. Our diverse makeup is hardly evident, however, from the demographics of federal judicial appointees. Between April 2012 and May 2014, only one of 107 new judges appointed by the federal government was from a visible minority group, according to a study by Prof. Rosemary Cairns Way. Gender statistics are similarly dismal. Women comprise approximately one-third of the bench even as they comprise 51 per cent of the overall population and 41 per cent of law- yers practising in Ontario. There is much to gain from having a judiciary that ref lects society in all its diversity. Diversity on the bench enhances judicial impartiality as well as public confidence in the administration of justice. It is a truism that impartiality is essential to a well- functioning judiciary. While people don't typically speak of diversity in the same breath as impartiality, there is a link between them. Impartiality does not im- ply pure objectivity for we have long dispensed with the notion that judges are able to completely discount their life experiences, sympathies, and values when exercising their judicial function. As former Supreme Court justice Peter Cory observed in R. v. S. (R.D.), "good judges will have a wealth of personal and profes- sional experience, that they will apply with sensitivity and compassion to the cases that they must hear." Chief Justice Beverley McLachlin also spoke of the issue in 2012: "Understanding impartiality begins with the recognition that judges are human beings. . . . They arrive at the bench shaped by their experienc- es and by the perspectives of the commun ities from which they come. As human beings, they cannot help but to bring these 'leanings of the mind' to the act of judging." Having a diverse bench, then, enhances impartial- ity because it means there will be more varied expe- riences and perspectives from which to draw on in interpreting and applying the law. Women and visible minorities, by virtue of their historical marginality, have a unique frame of reference as outsiders within that renders them suitably positioned to appreciate the assumptions and stereotypes underpinning many legal doctrines and engender previously overlooked interpretations, analyses, and approaches. A bench that ref lects society is pivotal to fostering public confidence in the ability of the courts to make sound, responsive decisions. For the public to perceive our court system as impartial and accessible, the judi- ciary must ref lect the diverse population affected by its decisions. Our conscious attitudes towards gender and race may not match hidden biases that steer our reasoning and behaviour as demonstrated by implicit- association test results. For example, many of us would say that the races are equal, yet at the same time exhibit a pro-white pattern of unconscious associations by, for example, associating positive words with whites and negative ones with blacks. On some level, we have been aware all along that there are hidden biases at work. It explains why people like to see a bench that includes people like them who can appreciate their lived realities and listen with con- nection. It also underpins the constitutional right to trial by a jury of one's peers chosen from a representa- tive jury roll. In order to devise concrete, evidence-based ways to improve diversity, we need to have a firm grasp of the current state of affairs: Why are certain groups under- represented on federally appointed courts? There has been a sustained chorus for better track- ing of data and access to the demographic information of applicants for judicial appointments as well as those named to the bench. With transparency comes ac- countability and an ability to measure progress. Brit- ain has been publishing judicial diversity statistics an- nually just as British Columbia releases info rmation on applicants to the provincial court. A holistic approach to moving towards a more diverse judiciary will entail an open selection process rid of political patronage as well as co- ordinated efforts to promote diversity at all levels of the legal profession and ensure that lawyers from all backgrounds recognize, early on, judicial office as an attainable career goal. Under the current federal selection process, eight- member regional judicial advisory committees review written applications. The federal minister of justice nominates three of the eight committee members, something that potentially colours the screening pro- cess with a political tint. The committees don't inter- view candidates. Instead, they undertake consulta- tions with the legal community and the community at large and designate each applicant as either "recom- mended" or "unable to recommend." The federal min- ister of justice chooses from among the candidates on the recommended list to put forward to the federal cabinet, which is where political considerations can come into play. Political patronage, real or perceived, discourages meritorious candidates of all backgrounds from ap- plying to be judges as they may view the endeavour a lost cause if they lack political connections. A merit- based, procedurally fair, and transparent appointment process will go a long way in strengthening people's faith in the system. To minimize political discretion, the recommendations submitted by each committee should involve a ranked short list of perhaps three to five candidates for a judicial opening with any depar- ture by the minister justified by reference to specific selection criteria. Moreover, the committees should interview the candidates under consideration for the short list. It is essential that high-quality, experienced candi- dates from all backgrounds seek judicial careers. Giv- en that appointments typically involve senior prac- titioners at the height of their professional success, it is reasonable to assume that more women and visible minorities will join the bench as more of them hold senior positions. For all the difference that a representative judiciary makes, it is high time that we make diversity on the bench a priority rather than an afterthought. LT Anna Wong practises civil litigation with Landy Marr Kats LLP. u SPEAKER'S CORNER Communist memorial yet another source of discord with judges e may know now why Prime Minister Stephen Harper picked that mys- terious fight last year with Supreme Court Chief Justice Beverley McLachlin over his attempt at foisting Justice Marc Nadon on the country's highest court. McLachlin had called up Harper's of- fice ahead of time to warn him privately about a potential issue with appoint- ing Nadon to the Supreme Court bench. McLachlin didn't have to tip off Harper. She was just being nice and was forewarn- ing him as a favour. But Harper being Harper, he went ahead anyway and tried to put Nadon on the Supreme Court bench. He probably thought that since he had appointed most of the Supreme Court judges, they would give in to him. That's how it works in politics but not in judicial appointments. Judges have a habit of following the law no matter who appointed them. That's what they did in this case when they ruled Nadon ineli- gible to sit on the Supreme Court. At first, Harper said nothing. He had no trouble finding a replacement. There are plenty of good lawyers and judges to choose from in Quebec. It was only a few months later that Harper surprised everyone by taking a run at McLachlin at a time when ev- erybody thought he was over it. So why did he wait so long to go after McLachlin? There must have been something else besides the Supreme Court's rejection of Nadon months earlier that provoked Harper's infamous temper. Now we learn that last year, McLach- lin wrote a private letter to the deputy minister of public works saying that she had concerns about Harper's plan to help build a $5.5-million memorial to the vic- tims of communism next to the Supreme Court building instead of a new Federal Court facility that had been in the works for many years. Her idea for the site was probably much more practical since there's no Fed- eral Court building in Ottawa. But on the question of whether we need an anti- communist memorial or a justice build- ing, it's not the chief justice who decides on the use of the real estate. A private citizens group, called Tribute to Liberty, plans to erect a memorial for the vic- tims of communism on the 5,000-square-metre Supreme Court site Harper handed over. In her letter, McLachlin noted her concern about the "bleakness and brutalism" of the monument. McLachlin may prefer a useful Federal Court building or, if it must be a memorial, at least some- thing more in keeping with the ideals of justice and the law. Harper probably thought that while he had lost on the Supreme Court ap- pointment, that was a legal decision and a monument against communism is the government's prerogative. And who was the chief justice to tell him once again what to do? One thing is clear. There's no way Harper is going to take land-use advice from a chief justice — or from any lawyer, for that matter — or the dozens of Cana- dian architects and their associations who have been questioning the anti-commu- nist memorial. The Canadian legal community is backing the chief justice. If there must be a memorial instead of a justice building next to the top court, it should be one that praises justice and the law, something like the elegant stone statues that grace the Su- preme Court building. It might have been better had Harper consulted the Canadian legal community before going ahead with his memorial on the Supreme Court lawn. But since when does Harper consult people before mak- ing his decisions? The memorial construction has be- come a political issue because the Ottawa Citizen obtained the chief justice's letter and reporter Don Butler has written a long front-page article about it. Now everyone's talking about it. Harp- er may be feeling good that he has been able to put McLachlin in her place after what she and the other judges did to him in the Nadon case, but with an election coming up this year, does he really need another controversy? LT Richard Cleroux is a freelance repor- ter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers. com. T W The Hill Richard Cleroux

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