How Trudeau can bring diversity to Supreme Court: Ranjan Agarwal
2016/10/20 Leave a comment
Some good practical suggestions. The ones I favour include publishing the demographics of applicants and focussing efforts on improving the diversity of other judicial level appointments, where the potential pool is larger.
The easing of the official languages requirement is a non-starter, so those with judicial ambitions should make knowledge of both official languages part of their education.
Needless to say – but I keep saying it – the Office of the Commissioner for Federal Judicial Affairs Canada should include in its reporting, the number of visible minority and Indigenous judges, not just women:
So, can this missed opportunity be salvaged? Yes, if the prime minister takes four steps.
First, he should make clear that Justice Rowe was appointed because he was the best Canadian for the job, not the best Atlantic Canadian. In doing so, he would affirm that his next appointment in September 2018 does not have to be from British Columbia (since Chief Justice Beverly McLachlin, who will retire then, notionally holds that seat on the Court), leaving open the possibility of appointing an aboriginal or minority judge from outside B.C.
In particular, the current convention does not allow for the appointment of a Northern Canadian, even though the courts in the territories are some of the most diverse in Canada.
Second, the prime minister should publish demographic statistics of the applicants for this appointment. How many women applied? Self-identified minorities? Aboriginals? Non-Atlantic Canadians? How many judges? How many lawyers? The problem with promising diverse appointments is that the talent pool at the senior levels of the bar or on the trial and appeal benches may simply not be there. Demographic statistics allow the government and the legal profession to consider where more work must be done to create a pool of good, diverse candidates.
Third, the prime minister should revisit (though not necessarily reconsider) the “functional bilingualism” requirement. Potential applicants have two years to immerse themselves in French-language training. But the government should test whether the bilingualism requirement had a disproportionate impact on aboriginal and immigrant communities, where French-language education may not have been a priority for their parents.
Finally, the prime minister should disproportionally fill the 60 other judicial vacancies with qualified women, aboriginal and minority judges. A more diverse Supreme Court is, in many ways, symbolic. The real work of the justice system happens in our trial courts — that may be the only interaction many Canadians have with a judge.
After every hearing, the Court’s justices gather over lunch to discuss their views on the appeal. The appointment of Bertha Wilson in 1982 surely changed the discussion around that table about many issues, including perhaps most importantly abortion, gender rights and spousal abuse.
The appointment of an aboriginal or minority judge will have the same impact, providing a much needed perspective on novel issues facing an increasingly diverse Canada and in an age of truth and reconciliation. Our justice system is the finest the world has ever known. But, sometimes, not only must justice be done, it must also be seen to be done.