Last summer, the Canadian Bar Association passed a resolution urging the federal government to address a lack of diversity in appointments to superior courts across the country.
Great strides have been made in ensuring law school and Bar admissions are more representative of the population, though there is more work to do. Women constitute more than half of the student population in many law schools and the number of non-white students is much more representative of the general population than it was 20 or even 10 years ago.
These very positive developments have not been reflected in appointments to the superior courts, however. Far from it.
To take one example, a Globe and Mail article this spring highlighted studies which showed that in the past five-and-a-half years, the federal government has appointed three
non-white justices out of nearly 200 appointments to the superior and federal courts across the country. Of 94 appointments between April 2012 and March 2014, only one non-white justice was appointed by Ottawa.
While there are many reasons to be concerned about the marked lack of diversity in appointments, I could not put it any better than Chief Justice Beverley McLachlin, who said in 2012: “Many people, particularly women and visible minorities, may have less than complete trust in a system composed exclusively or predominantly of middle-aged white men in pinstriped trousers.”
Transparency is Lacking
There is something wrong with the system, yet we may not even be able to identify the root of the problem. Are lawyers from visible minorities not applying for judicial appointments in proportion to their numbers within the profession? Are they being recommended for approval by the Judicial Advisory Committees in each province but not being appointed by the federal government?
The answer is, we don’t know. The federal government does not publish such statistics, and so we are left to speculate.
Is there a better way to get at the causes of the problem? Let’s start with more transparency. Why not publish the number of applicants from equality-seeking groups and the number of such applicants recommended for appointment by Judicial Advisory Committees? Indeed, that recommendation was made by the CBA in its resolution last summer, citing as a model the Judicial Council of British Columbia, which reviews applicants for the appointment to the B.C. Provincial Court.
There is much to be learned from such statistics, which would help us in addressing underrepresentation in the judiciary.
In our province, the B.C. Branch is sponsoring a forum, “Building Diversity on the Bench,” taking place in Vancouver on May 27 and available via webinar across the province. (The event will have already taken place by the time this issue of BarTalk hits your desk, but we are advertising the event through throughout May in other venues). We are partnering with the Federation of Asian-Canadian Lawyers, the South Asian Bar Association, the Canadian Association of Black Lawyers and the Law Society of British Columbia.
At the forum, attendees will learn about the appointment process to the Provincial and Supreme Court of B.C. and will hear from several judges about their experience serving on the courts. This event follows on the heels of a similar successful event last year, “So You Want to be a Judge?”
I am proud that diversity in the profession and on the Bench is a core value of the Canadian Bar Association. I welcome any comments from our members on what we might do to improve our efforts in this area.