In the past three and a half years, the federal government has appointed 100 new judges in provinces across the country – and 98 of them were white.
As Canada marks the 30th anniversary of the Charter of Rights and Freedoms – a document that enshrines the rights of equality and diversity – a Globe and Mail review of superior court appointments reveals at least one area that falls short: the very judiciary responsible for upholding and interpreting the country’s laws.
According to figures compiled by The Globe, the exceptions were two Métis judges appointed in B.C. and Nova Scotia. Only in the territories, where three aboriginal judges have been appointed since 2009, does the federal appointment process better reflect the community.
The lack of diversity among judges raises searching questions in a country where one in five citizens belongs to a visible minority and where many people can expect to see a bench that does not reflect them.
The opaque nature of the appointment process is equally startling. Judges with vast powers of interpretation under the Charter are still appointed behind closed doors. To obtain a glimpse of recent patterns, The Globe has used Internet searches and culled information from judicial sources and law firms where judicial appointees worked.
Advocates of minority appointments contend they have a profound effect on many levels, including the fact that judges learn about other perspectives by rubbing shoulders with colleagues from minority communities.
“As much as we would like to believe otherwise, justice is not blind,” said Naiomi Metallic, an aboriginal lawyer in Halifax. “While the law is objective, a person’s assessment of the facts, including another’s behaviour, motives and justifications, is inevitably coloured by who we are and where we come from.”
B. William Sundhu, a Canadian-born Sikh and former B.C. Provincial Court judge, said the lack of diversity reveals a system that pays lip service to equality. “The record of appointments ought to raise serious concerns about equality, legitimacy, representation and public confidence in the justice system and courts of the country,” Mr. Sundhu said.
A Justice Department spokesman, Julie Di Mambro, said that while the government has no statistics available on minority appointments, they reflect the recommendations of 17 judicial advisory committees across the country.
“Our government is guided by the principles of merit and legal excellence in the selection and appointment of judges,” she said.
However, one high-level member of a federally appointed court, who spoke on condition of anonymity, argued that the opacity of the process is disturbing – and that there is a great need for information about who is being appointed and why.
“The key stage of the federal process is so invisible that it is virtually impossible to determine if the objective of increased diversity is being given weight as a guiding principle – apart from occasional, general statements from the Ministers of Justice,” he said. “You are left trying to draw conclusions from the appointments themselves.”
At any given time, about 1,100 judges appointed by the federal government are serving on provincial superior courts, the Federal Court of Canada, Federal Court of Appeal, Tax Court of Canada and the Supreme Court of Canada.
The regional committees that vet applicants are composed largely of senior lawyers, judges and police or community members appointed by Ottawa. Those designated as “recommended” are put on a list that is debated in the Justice Department and at cabinet.
A half-dozen members of vetting committees did not respond to interview requests.
Jacob Ziegel, a University of Toronto law professor who specializes in the judicial appointment process, said federal governments have refused to open up the process.
“It is highly politicized,” Prof. Ziegel said. “I’ve been told by former cabinet ministers that they actually sit around the cabinet table debating who should be appointed to fill a vacancy. It is viewed as a very valuable means of rewarding your supporters.”