Who are the Judges and Whose Values Do They Represent?

June 1, 2010.

Recent controversy over political influence in judicial appointments in Quebec and bilingualism for Supreme Court justices has, yet again, drawn attention to the issue of judicial selection. Some even argue, that the authority of judges should be expanded and that human rights cases should now be heard by the courts, not tribunals; judges they contend are better placed to make such decisions because “human rights are serious business.”

This begs the real question: who are the judges and whose values do they represent? How are judges really selected? These are important questions because judges exercise power and make decisions which profoundly affect people.

Canada’s judicial appointments process lacks independence and transparency. Legal scholars have shown political affiliation seems to matter too much in appointing judges by Liberal and Conservative governments. Since 2006, the Harper government has given police associations a vote on Judicial Advisory Committees – a period in which it has filled one-third of all federal judgeships. What does this say about a balanced approach to our rights?

Canada is a rapidly changing and increasingly diverse society. Nearly one in five Canadians is a member of a visible minority group. By 2031, one in three Canadians will be a “visible minority” and a majority in our largest cities. And yet, the judiciary is white, significantly corporate and largely from advantaged backgrounds.

It is highly questionable whether Canada’s judges have experience in human rights – a background in dealing with the disadvantaged, the poor, or racial and ethnic minorities. Many minorities do not have satisfactory experience with the co

urts – the judges do not always understand the differences in culture and ways of communication. The way we see and interpret the world is shaped by our culture and life experience. The virtual domination of our courts by one racial and cultural group risks exclusion of other viewpoints and ways of human understanding. There is danger of stereotypes and false assumptions.

Modern racism is more hidden and sophisticated. Some minorities believe, increasingly, the courts seem unable or unwilling to seriously entertain questions of racism and its systemic manifestations. Yet again, the Supreme Court of Canada has recently declined to hear a case in which issues of racism and systemic discrimination were raised. The trend of refusing to hear cases involving race is one, with rare exception, stretching back well into the 1990’s. If you do not hear it or mention it – it therefore cannot exist? Too many judges do not want to really talk about it.

Racism is a pernicious evil and, despite a national narrative and “myth of equality” – it is still with us. We need to talk about it. Our judges need to understand it. Denial is not a sustainable approach to justice. If our judges do not deal with it properly – it will manifest itself in other ways. Our national well-being may well depend on it. Despite lip service to diversity, Canada lags behind other advanced democracies on judicial selection. The UK created an independent Commission for Judicial Appointments in 2002. Canada has not. In 1992, Lord Chief Justice Taylor, promised the imbalance would be addressed “in the next few years” – that it was only a matter of time. The promise was an abject failure.

The British Ministry of Justice commissioned a Report on Judicial Diversity, released February 2010. It recommends a coherent package of reforms to increase diversity of the judiciary – a fundamental shift in approach, “in a democratic society the judiciary should reflect the diversity of society…Judges drawn from a wide range of backgrounds and life experiences will bring varying perspectives to bear on critical issues.” It calls for a proactive campaign of mythbusting. Others are far ahead of us on these questions. A judiciary dominated by one group has profound implications for equality of justice, legitimacy, and public confidence. Canada’s Chief Justice Beverley McLachlin has spoken of the need for greater diversity and better judging. Her colleagues on the Supreme Court and benches across the country appear politely dismissive (very Canadian). The promise of greater diversity has been partly met – with advancement of female judges – against a “pale male” judiciary. This has been to the exclusion of racial and ethnic minorities. The structures of our “modern” judiciaries verge on a total whiteout.

Bill Sundhu is a lawyer, former judge, and member of Kellogg College of University of Oxford.