The federal government has promised more transparency in judicial appointments and has declared its commitment to diversity in leadership. While it has made some good progress on transparency, there has been little appreciable difference in the diversity of those sitting on federal benches.
The CBA has added its voice to a growing chorus of equality-seeking groups in the legal profession to encourage the government to ensure that the federal bench reflects the diversity of the public It serves.
In September CBA President Brad Regehr and former president Vivene Salmon wrote to Prime Minister Justin Trudeau and Justice Minister David Lametti to urge them to appoint more Black, Indigenous and People of Colour candidates to the Supreme Court and other federal judicial positions.
“We have long called on the government of Canada to make judicial appointments that reflect the diversity of the Canadian population, and to consider membership in equality-seeking racial groups one of the many factors in the assessment of judicial candidates,” they wrote.
They noted that the government modified the federal appointment system in 2016 to increase the diversity of judicial appointments, and started gathering and publishing self-identification data.
“However, we are concerned that these commitments and changes have not resulted in an appreciably more diverse judiciary to date. Between 2016 and 2019, only three per cent of federal judicial appointees self-identified as Indigenous. With no race-disaggregated data we do not know how many federal judicial appointees identified as Black, but only eight per cent identified as visible minorities.”
The CBA also urges the government to review criteria that create barriers to the appointment of BIPOC candidates, such as the requirement of functional bilingualism at the time of appointment for Supreme Court candidates, noting that Indigenous candidates face systemic barriers to attaining this level of proficiency.
“While institutional bilingualism is an important principle, a candidate’s inability to read materials in English and French and to understand oral arguments without an interpreter at the time of appointment should not be a bar to their serving on the Supreme Court of Canada. The criteria for judicial appointments should give equal weight to the experiences and perspectives offered by candidates from BIPOC communities as it does to bilingualism. Overlooking BIPOC candidates who speak other languages or are unilingual deprives our judiciary of critical viewpoints.”