Overcoming the diversity deficit on federal courts

Federal justice minister David Lametti knows that the federally-appointed bench isn't diversifying quickly enough, and he's vowing to do something about it.

"It is going in the right direction, I'm pleased at the direction in which it's going," says Lametti. "Is there more work to do? Absolutely. We need to make more good appointments, but I think we're doing a decent job, and we're getting better at it, and hopefully it will continue to improve over time."

But merely calling on lawyers from under-represented groups -- BIPOC [Black, Indigenous, People of Colour], women and the LGBT community -- to put their names forward hasn't been doing the trick. Members of legal organizations representing diversity on the bar say that this approach may have run its course.

"If you just keep doing things the same old way, they're clearly not reaching people and then people aren't applying," says Brad Regehr, president of the Canadian Bar Association, and a member of the Peter Ballantyne Cree Nation in Saskatchewan, who is based in Winnipeg. "It's going to take some innovation in terms of reaching people."

There is ample evidence that women and other minorities will self-select themselves out of an application process for a position on the bench because they don't feel that they could be chosen based on the established profile of the judiciary, which makes the notion of application problematic.

"We know that people's sense of how qualified they are varies according to gender and racialization, and other experiences that people may have had," says Martha Jackman, a law professor at the University of Ottawa, and co-chair of the National Association of Women and the Law (NAWL).

"To apply, by definition, you have to think that you're qualified. But you also have to feel like you're appointable, and there are many qualified applicants that may well understand that they are extremely meritorious – even more meritorious than others – but they have a strong sense, that is probably accurate, that they won't be appointed, so they don't apply," says Jackman. "There is a typical profile for who is appointed."

Lori Anne Thomas, president of the Canadian Association of Black Lawyers, agrees that people who don't see themselves on the bench will avoid applying. "Why put yourself through the torture for a job that's probably not going to happen?" asks Thomas.

Both Thomas and Jackman also point to how opaque the federal application process can be, making it another barrier for application.

"You're applying for a position that may or may not exist," says Thomas. "You'll never know when the decision will be made, and as soon as the decision is made, you're no longer a lawyer – you plan for a future that may never happen or can happen in the next minute. It's a very odd situation."

At least in the Ontario Court of Justice application process, Thomas notes, there are interviews that tell applicants they have reached that stage in the process. That doesn't happen federally, and lawyers don't necessarily have access to someone who has been through the process before to reassure them.

Thomas recommends that the government make the process "more transparent and welcoming to everybody who applies."

"These are professional people, and if they have the qualifications, they should know where they are," she says adding that it would be worthwhile for the Judicial Advisory Committee to take the time to offer some encouraging words not to give up.

According to Jackman, any systemically discriminatory forces at play in society and within the profession will be reflected and reinforced in an appointment process.

"I think there is a legitimate perception that this is an insider's opaque process where there are certain individuals who already have a big head-start, and why would you bother?" she says.

Lametti says he's aware that people will take themselves out of the running, and that the "process is onerous." But for a reason: "It's onerous because it's introspective," says Lametti. "Whatever the outcome, you actually understand yourself a whole lot better when you're done, and it is an in-depth application process because we want people to realize that we want them to write about their experiences. We want them to tell us about what has made them unique, and that's onerous. But if we were more superficial about it, [...] we wouldn't get the quality outcomes that we're looking for."

Lametti says that the government is making headway with its appointments. Of the 74 appointments made since the October 2019 election, 44 have been women, two have been Indigenous, 14 were visible minorities, and six identified as LGBT. He hopes that record will help more lawyers from diverse backgrounds see themselves on the bench.

Thomas, however, is wary of the statistics that don't differentiate Black appointments from other visible minorities.

"What they fail to understand is that people of colour and Black are not necessarily the same thing," says Thomas. "Black people can be included in people of colour, but given that both Indigenous and Black persons are over-represented in the criminal justice system, when somebody who's Black or Indigenous comes in and they see someone who is South Asian or Asian, that doesn't make them feel that this person understands my lived experience."

And what if, instead of waiting on people of diverse backgrounds to apply, the judicial advisory committees were to be more proactive in targeting lawyers by nominating them?

"Clearly, we are in a position where things have been done a certain way for a long time, and then we're getting the complaint that people aren't applying," says Regehr. Then I say give it a try."

According to Jackman, being tapped by someone in government will give the potential applicant the impression that they are qualified.

Thomas agrees that nominations are an idea to consider. "I can say that CABL has an open relationship with the federal government, as well as provincial governments, in terms of talking about these issues, but it is hard when the process is so difficult," says Thomas.

It's a fair point, says Lametti, but he doesn't want to bring back nominations at the cost of ensuring that the process is transparent and fair.

"We've put in a variety of application processes to become transparent and fair, but every time I'm out since I became minister, in speaking to various parts of the legal community, I've told people to apply," says Lametti. "I've told people not only to become judges, but to apply to be members of the JAC, because they are representative in their composition in order to get better readings of the files."

Troy Riddell, a political science professor at the University of Guelph, who studies judicial appointments, says that the government could alleviate concerns around transparency by outlining a public list of criteria.

"As long as there was an understanding that, if the [Judicial Affairs] Commissioner's office directly encouraged an application, that application would have to go through the same vetting process as other candidates, I would not see a problem with that approach," says Riddell.

Lametti is also keen to emphasize the value of mentorship to get more diverse lawyers to apply to the bench.

"We all have a role to play, where you see good colleagues and you think 'you really ought to do this. You should be thinking about this, and you should be preparing yourself to apply,' or helping edit or draft the application, or giving feedback, or whatever," says Lametti. "We all have an obligation to do that, and I think we'll get a better bench if we do."

Regehr agrees that reaching out and talking to lawyers about applying for the bench helps. But he also preaches tenacity. "Being a lawyer is a busy occupation," he says. "Sometimes you're getting 100 emails every day, and it gets buried. That can be part of the problem, too. It requires some rethinking in terms of how we advertise for these jobs, and how government and Judicial Affairs can reach out to people."

Black and Indigenous professionals who have been elevated to the bench also have a role to play, says Thomas. But because there are so few of them, it can be a burden.

"It places a lot of the responsibility on associations such as ours, where we are trying to reach out to our membership and encourage them to apply," she says. "But that's from our point of view – not necessarily the judiciary or the federal government." More outreach on their part "could be enough to encourage people to apply."

Several legal groups have written letters to Lametti, calling on him to fill vacancies on the Federal Court with BIPOC judges, including the CBA. Only two currently sit on the court.

Lametti says that he hasn't yet formally responded to the letters. However, he did want to set the record straight that candidates other than those seeking appointment to the Supreme Court of Canada need not be bilingual in both official languages.

"Bilingualism is an asset but is not a requirement or a baseline requirement for either the Federal Court judges or the federally-appointed superior court judges in Canada," he says.

He also noted that federal judges often have to move to the Ottawa-Gatineau region. That, coupled with the subject-matter needs of the court, further complicate matters.

"The Federal Court has subject area jurisdiction in Indigenous matters, in administrative law, in intellectual property, as examples, and you do want people with expertise in those areas for those courts," says Lametti. "That being said, we do our best to make sure that candidates from diverse backgrounds are considered for Federal Court appointments, and I think we're getting better in that regard as well."

Jackman notes that there will soon be two Ontario vacancies on the Supreme Court. There won't be any excuse for passing over appointments from unrepresented groups, she says.

"There's a burden of justification for both of those appointments," says Jackman. "And there's no possible explanation why the justice minister and the prime minister cannot appoint very meritorious individuals who have a lived experience that is different from the dominant culture."