The lack of diversity among superior court judges in Canada that made headlines recently has been flagged before by several studies. In reported comments, Peter MacKay, the Minister of Justice and Attorney General of Canada, has been anecdotal on why there is a lack of women on federally appointed court benches while being silent on why the number of visible minority judges is so low.
Minister MacKay’s inability to offer insight into an opaque process that produces a demographically skewed judiciary may stem from lack of official data. While we know that female judges account for 382 out of 1,120 federal judges, the Office of the Commissioner for Federal Judicial Affairs does not track the numbers of visible minority appointees. The Canadian Bar Association, in an assessment of the procedures for the appointment of judges, has identified the lack of data about representation of visible minorities in the judiciary as a major barrier to progress.
According to a Globe and Mail and University of Ottawa analysis, in the past five and a half years Ottawa appointed just a handful of non-white judges out of the nearly 200 first-time justices it has named to the bench. Improving Representation in the Judiciary: A Diversity Strategy, a study released by Ryerson University’s Diversity Institute in 2012, revealed that while some progress has been made with female representation, it remains stalled in the case of visible minorities. Just 2.3% of the federally appointed judges analyzed based on a sample of 221 were visible minorities.
There is a higher percentage of visible minority judges among Ontario’s appointees. In a sample of 138, 10.9% are visible minorities compared to 15% of practicing lawyers in the province. The better representation could be partly attributed to the differences in the appointment processes between the federal and provincial courts.
More open and transparent process
While not perfect, the Ontario Court of Justice requires a broadly constituted appointments committee that reflects the diverse population of the province, the Diversity Institute study said. The process is also made more open and transparent by announcing and advertising vacancies and reaching out to communities. In contrast, the study found the federal process appeared to be less transparent, with decision-making more concentrated in the hands of politicians.
The Diversity Institute research, part of a large multi-year study, builds on an earlier examination commissioned by the Maytree-Civic Action DiverseCity Counts project. That report, released in 2011, showed just 6.8% of leaders in the Greater Toronto Area legal sector were visible minorities, relative to 49.5% of the population studied. Judges, justices of the peace, governing bodies, law school leaders, partners in the top 20 law firms and crown attorneys in the area were included in the study. It reinforced an earlier report that showed only 14.4% of practicing lawyers in the area were visible minorities.
Previous research also suggests that barriers to entry persist in law firms. The Canadian Association of Black Lawyers has said legal professionals from the community do not have equal access to articling and post-call positions in corporate and commercial law firms. Immigrant lawyers, particularly visible minorities, also find it difficult to get their credentials recognized. They face barriers to advancement and are frequently offered non-permanent contract positions with fewer leadership opportunities.
As judicial appointments are inherently political processes relying heavily on informal networks for nominations, visible minorities are less likely to have access to them. This very lack of diversity throughout the path makes the likelihood of finding visible minorities in positions that lead to judicial appointments more difficult.
What this implies is that not only does the problem increase as we move up the value chain, but lower down, the reservoir of talent that supplies the federal courts doesn’t reflect Canada’s changing demographics, either.
Diversity at the top of the legal profession is a social imperative as lawyers and judges are in the forefront of advocacy and social change. The federal government should take the lead to ensure fair representation in a sector that is critical to our democratic society. It could start by establishing clear diversity goals, tracking the number of diverse appointees, and establishing a more open and transparent process.