Legal bodies call for greater diversity on federal courts

  • September 14, 2020

By Terry Davidson for The Lawyer's Daily

Three dozen legal associations and advocacy groups have sent a letter to Canada’s attorney general calling for current judicial vacancies at the Federal Court to be filled with judges of colour as a way of increasing racial diversity on the bench.

The letter, sent early on Sept. 14 to Minister of Justice and Attorney General David Lametti, was signed by 36 groups, including the Canadian Association of Refugee Lawyers, the Canadian Association of Black Lawyers, the Indigenous Bar Association and the Ontario-based Chinese & Southeast Asian Legal Clinic.

They point to a lack of diversity at the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada and call for the increased judicial appointments of those applicants who are Black, Indigenous and people of colour (BIPOC).

The letter notes that the Federal Court of Appeal and the Supreme Court “continue to be all white benches,” and that of the 35 full-time judges currently sitting on the Federal Court, only two are of colour.

This, they say, is “especially troubling given that 63 [per cent] of the Federal Court’s docket deals with immigration, refugee and Indigenous cases, areas in which almost all applicants are BIPOC.”

They point to recent statements made by Canada’s top judge highlighting the need for greater diversity.

“It is undeniable that the current racial composition of our federal courts does not reflect the diversity of Canada,” the groups state. “Just last month, Supreme Court Chief Justice Richard Wagner highlighted the importance of racial representation on the bench in stating, ‘All Canadians should be able to see themselves reflected in their justice system. Justice should not make a person feel like an outsider or an ‘other’ when they confront it.’ The legacy of centuries of institutional racism has led to a dominantly white federal bench making decisions governing the actions and behaviors of BIPOC communities, without ever having experienced the prejudices and racial biases faced by these communities.”

There are currently six judicial vacancies on the Federal Court. The group says filling these holes “with BIPOC judges would make large strides to remedy the effects … of institutional racism, and would be in keeping with diversity of representation for the Canadian judiciary.”

Greater consideration, it states, should be given to qualified BIPOC candidates applying to be Canadian judges.

“Filling the vacancies in this manner is easy given the numerous qualified BIPOC candidates who have already been screened. Last year alone, there were 13 Indigenous and visible minority applicants who were ‘Highly Recommended’ by Judicial Advisory Committees. A further [four] were ‘Recommended.’ Nonetheless, out of 86 new judges appointed in 2019, only two were Indigenous persons and only four were from visible minority groups.”

Anthony Navaneelan, vice-president of the Canadian Association of Refugee Lawyers (CARL), says bringing colour to those vacancies “would be a tremendous start towards having the court look more like the people they serve or the public they represent” and remains “cautiously optimistic” the letter will have some sway.

“This is an issue the federal government — especially the [Justin] Trudeau government — has highlighted numerous times,” said Navaneelan. “As recently as last year, in the mandate letter to the Minister of Justice, the Prime Minister put this commitment back in there to say we want a federal bench that looks more like the country. So, I’m cautiously optimistic that we can see some real progress on the issue from minister Lametti. The idea … behind the letter is to keep this issue front and centre before him so that it’s an issue he can’t avoid.”

Navaneelan said that value placed on Federal Court candidates being bilingual in English and French could present a barrier for a BIPOC candidate who speaks one of Canada’s two official languages and one foreign.

“There is an idea now that being bilingual means that you’re the best of the best. And of course bilingualism is a core principle of the Federal Court … but the idea that every single justice has to be bilingual in French and English may be screening out other candidates who are equally qualified in different ways. There are obviously candidates who speak an Indigenous language as well as either English or French; there are candidates who maybe only speak English or French but bring a different set of experiences or values that are equally important to producing just and representative decisions.”

Lametti’s office was asked for comment.

“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,” Lametti press secretary Rachel Rappaport said in a statement. “We are committed to having a judiciary that looks more like Canada — one in which all Canadians can see themselves reflected.”

Turning to overall numbers, Rappaport went on to say that since the Liberals’ October 2019 re-election, “59 [per cent] of the judges we’ve appointed or elevated are women, 19 [per cent] identify as a visible minority, and a further three [per cent] identify as Indigenous.”

“There is no doubt that there is more work ahead to continue seeing these numbers rise, but we are on the right track,” she stated.

As for English-French bilingualism, Rappaport said it “is not a requirement for appointment to the Federal Court.”

Information sent from Lametti’s office states that bilingualism is considered an asset for candidates but is just one factor among others to be considered.

The information also states candidates are asked to check boxes indicating courts for which they would like to be considered and that successful Federal Court candidates must agree to reside in the National Capital Region.

Also, candidates’ specialties — constitutional or administrative law, for example — need to be considered when determining what candidates to appoint. For this reason, some candidates may not fit the bill for the position.

Also on Sept. 14, the Canadian Bar Association (CBA) issued a press release in which it called on Canada’s government to “put its stated commitment to diversity in leadership into action by appointing more Black, Indigenous and People of Colour to the federal benches.”

“The judiciary in Canada remains overwhelmingly white, meaning judges lack first-hand knowledge and experience of the racism and systemic challenges faced by people of colour,” states the CBA. “A more racially diverse judiciary would have more credibility among members of equality-seeking communities.”