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Data & Diversity in the Canadian Justice Community
Sabrina Lyon & Lorne Sossin
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2389410, Draft January 21, 2014
Part One: Diversity & the Judicial Appointment Process
Judges in Canada are no longer simply selected behind closed doors. While serious gaps in transparency remain with the appointment process both provincially and federally, all judicial appointments (save for the Supreme Court of Canada) are filled by application. The applications are vetted by some form of advisory committee. This process allows for data to be kept both on who is applying and, of course, with respect to the demographic background of those appointed. In other words, if data are not kept or published on who is applying or being appointed as judges in Canada, it is because appointing governments (and government bodies) choose not to do so, not because the numbers are unknowable or the process so opaque that it could not be done.
We argue that the choice not to keep or track such data is directly linked to the failure of Canada’s judiciary to reflect Canada’s rich demographic diversity. Put bluntly, what we count counts, and to this point, diversity has neither counted nor been counted. That is perhaps not quite fair. Diversity has counted, and been counted, but of a different kind. Geographic diversity, for example, is embedded in the fabric of the Constitution Act, 1867 itself, which requires federally appointed superior court judges (s.96 judges) be resident in the province where they are appointed. Similarly, the Supreme Court Act’s requirement that three Supreme Court justices be from Quebec represents another approach to diversity (bilingualism, bijuralism, etc). That said, the Canadian judiciary throughout much of its history has been remarkably homogenous (white and male), and this in turn has been a product of active discrimination against other groups of qualified lawyers, not mere chance. Bertha Wilson was the first woman appointed to the Ontario Court of Appeal in 1975, and the first appointed to the Supreme Court in 1982, while Justice Harry LaForme’s appointment to the Ontario Court of Appeal in 2004 was the first appointment of an aboriginal person to any appellate court in Canada (or, indeed, the Commonwealth). Maurice Charles became the first black Canadian judge in 1969 when he was appointed to the Ontario Provincial Court, and Michael Tulloch became the first black Ontario Court of Appeal justice with his elevation from the Superior Court in 2012. There still has yet to be a visible minority or aboriginal person appointed to the Supreme Court of Canada.
What we know is that the Canadian judiciary is overwhelmingly white at a time when Canadian society is more diverse than ever before. We do not know whether non-white lawyers are underrepresented among the pool of judicial applicants, or whether non-white lawyers are applying but not being appointed. Without accurate data it is not possible to design proactive outreach to address any gaps in the applicant pool. Without disclosure, public confidence in the fairness of the appointment process may erode.
With data comes evidenced based analysis, and with such analysis, expectations for change will grow. It is not that change is impossible without data, but that knowledge about a gap or problem tends to give rise to the search for solutions.
While virtually all leaders in the political and legal communities express support for enhancing the diversity of the judiciary, not all do so for the same reason. The puzzle of a representative judiciary is that many want a diverse bench because more varied experience will enhance judicial decision-making, and yet many worry about a representative judiciary precisely because it may mean judges will decide based on their identity or community affiliation rather than based on the facts and law before them.
This anxiety about a representative – or reflective – judiciary was captured most vividly in the Supreme Court’s decision in R.D.S. v. The Queen. In that case, the trial judge (who was African-Canadian) was hearing a case involving an African-Canadian youth who was charged with assaulting a police officer. The only two witnesses at trial were the accused himself and the police officer. The police alleged that the youth had resisted arrest and become violent with him. The youth alleged that he had been the subject of threats of violence at the hands of the police officer. Their accounts of the relevant events differed widely and the case turned on credibility. The trial judge indicated that she had a reasonable doubt about the accused’s guilt even without accepting the evidence of the accused with respect to the conduct of the police officer. She concluded that the Crown had not discharged its evidentiary burden to prove all the elements of the offence beyond a reasonable doubt. The trial judge elaborated on her findings with the following comments:
The Crown says, well, why would the officer say that events occurred in the way in which he has relayed them to the Court this morning. I am not saying that the Constable has misled the court, although police officers have been known to do that in the past. I am not saying that the officer overreacted, but certainly police officers do overreact, particularly when they are dealing with non-white groups. That to me indicates a state of mind right there that is questionable. I believe that probably the situation in this particular case is the case of a young police officer who overreacted. I do accept the evidence of [R.D.S.] that he was told to shut up or he would be under arrest. It seems to be in keeping with the prevalent attitude of the day.
The case reached the Supreme Court on the question of whether these comments gave rise to a reasonable apprehension of bias—a divided Court issued four separate sets of reasons. Writing for the majority judgment on this issue, Cory J. observed:
The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes…True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind. [Canadian Judicial Council, Commentaries on Judicial Conduct (1991), at p. 12.] It is obvious that good judges will have a wealth of personal and professional experience, that they will apply with sensitivity and compassion to the cases that they must hear. The sound belief behind the encouragement of greater diversity in judicial appointments was that women and visible minorities would bring an important perspective to the difficult task of judging. See for example the discussion by The Honourable Maryka Omatsu, “The Fiction of Judicial Impartiality” (1997), C.J.W.L. 1. See also Devlin, supra, at pp. 408-409. (Emphasis added.)
In the context of this case, Cory J. held that the comments by the trial judge were “unfortunate”, “worrisome” and “come very close to the line” but when considered in light of the submissions and evidence in the case, did not in his view give rise to a reasonable apprehension of bias.”
Three judges of the Court dissented and found the comments did create a reasonable apprehension of bias, as it suggested factors not in evidence influenced the trial judge’s determination of credibility. The two female judges of the nine member court, Justice McLachlin (as she then was) and Justice L’Heureux-Dubé, concurred with Cory J. in the result, but would have gone even further in condoning the comments of the trial judge, asserting, “An understanding of the context or background essential to judging may be gained from testimony from expert witnesses in order to put the case in context… : A reasonable person far from being troubled by this process, would see it as an important aid to judicial impartiality.”
12 For discussion on appointment process, see Lorne Sossin, “Judicial Appointment, Democratic Aspiration and the Culture of Accountability” (2008) 58 University of New Brunswick Law Journal 11. With respect to the Supreme Court in particular, see Sossin, supra note 8.
13 Philip Girard, Bora Laskin: Bringing Law to Life (Toronto: University of Toronto Press, 2005); Ellen Anderson, Judging Bertha Wilson: Law as Large as Life (Toronto: University of Toronto Press, 2002).
14 See “Canadian Association of Law Teachers Panel on Supreme Court Appointments”, online: Canadian Association of Law Teachers <http://www.acpd-calt.org/wp-content/uploads/2010/12/SupremeCourt_ panel.pdf>.
15 According to Statistics Canada, visible minorities made up 42.9% of Toronto’s population in 2006 – see “Canada’s Ethnocultural Mosaic, 2006 Census: Canada’s major census metropolitan areas” Statistics Canada, online: <http://www12.statcan.gc.ca/census-recensement/2006/as-sa/97-562/p21-eng.cfm>, whereas DiverseCity report 3 indicates that visible minorities make up only 8.3% of judges in the GTA – see Cukier et al, Diversecity Counts 3: A Snapshot of Diverse Leadership in the GTA (Toronto: Diversity Institute, 2011) at 26, online: DiverseCity Toronto <http://diversecitytoronto.ca/wp- content/uploads/CountsReport3-full.pdf>.
16 R v S (R.D.),  3 SCR 484 [R.D.S.].
17 Ibid at para 4.
18 Ibid at para 119.
19 Ibid at para 152.
20 Ibid at paras 44-45.