Over a century ago, without his knowing it, legendary jurist Oliver Wendell Holmes spawned the case for judicial diversity in ten words: “the life of the law is not logic, but experience.” Bursting from these words is a truth we have known all along. Legal issues often pose uneasy choices. In choosing whose stories to believe and which principles to prioritize, a judge draws on not only legal precedents, but also personal experiences, values and beliefs.
However they might try, judges cannot shed their experiences and values at the courtroom door. Justice Bernd Zabel brought the point home when he wore a hat emblazoned with Trump’s campaign slogan, “Make America Great Again,” to open court. Explicitly or implicitly, we have all accepted that a judge’s personal experiences matter. It explains why upon the announcement of a nominee to fill a high-profile judicial vacancy (think Justice Malcolm Rowe, or nominee Neil Gorsuch in the United States), the media invariably abound with reports on the nominee’s personal background, and based on that, predictions are made as to how they might decide cases.
Despite successive governments of different stripes avowing change over the years, the numbers tell what is by now a tired tale: in contrast to the community it serves, the federal judiciary remains predominantly white and male. Of the 1122 federally appointed judges, only 418, or 37%, are women. Visible minorities and Aboriginals occupy an even paltrier number of seats at all levels save for the Supreme Court, where they have no representation whatsoever.
Diversity versus Merit
While few today would outright oppose a more representative judiciary, progress towards it comes up against two main stumbling blocks, the first being the primacy of merit argument, which goes something like this: it would be better to have more diverse judges, but what is most important is that the best, most capable people are appointed.
However incontestable the proposition may seem at first blush, it belies the merit in diversity, and assumes that judges are solitary, neutral ciphers.
In reality, judges influence each other’s case evaluations. It is most apparent in appellate panel settings (for example, nonblack judges are up to 30 percentage points more likely to rule in favour of affirmative action when they sit with a black colleague), though trial judges are not immune. The mere presence of difference, in itself, can be compelling. As the late Associate Justice of the Supreme Court of the United States Antonin Scalia once remarked,
Marshall [the first black member of the U.S. Supreme Court] could be a persuasive force just by sitting there. He wouldn’t have to open his mouth to affect…how seriously the conference would take matters of race.
Having more diverse judges on the bench, then, enhances the collective competence of the court by bringing to the table, and heightening sensitivity to, a wider range of perspectives. Put another way, a more diverse judiciary makes for a more meritorious judiciary, and in turn, better justice.
The juxtaposition of diversity against merit suggests that diverse appointees are somehow less qualified, which begs the question: what makes a good judge?
Among the various qualities that come into play in adjudication, and so we expect a good judge to have, open-mindedness trumps. “The reasonable person”, wrote Justices Claire L’Heureux-Dubé and Beverley McLachlin in R. v. S. (R.D.), “expects judges to undertake an open-minded, carefully considered, and dispassionately deliberate investigation of the complicated reality of each case before them.” The Canadian Judicial Council similarly noted that open-mindedness is the hallmark of impartiality:
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.
Being on the margins by nature of one’s minority status or gender lends itself to an open-mindedness to question the status quo. Laws, like government policies, are seldom, if ever, completely neutral. They are often embedded with stereotypes, assumptions and biases that disadvantage certain groups – typically those less powerful, particularly when they fail to conform to normative expectations. As our laws have by and large been written and administered by white men, it is more difficult for them to discern, let alone challenge, the assumptions that they themselves planted in the first place.
For all the emphasis on merit, our current system of judicial selection may not be so meritocratic after all, as Justice Robin Camp’s elevation illuminates.
In 2014, Justice Camp — then a provincial court judge — presided over a sexual assault trial where he repeatedly addressed the victim, a 19-year-old Indigenous woman, as the accused. He berated her for not doing enough to resist when the alleged rape took place, and suggested that she asked for it because “young woman [sic] want to have sex, particularly if they’re drunk.”
The next year, while his conduct of the trial was the subject of appeal, Justice Camp was promoted to the Federal Court. By any measure of merit, a judge who later confessed that “my colleagues knew my knowledge of Canadian law was very minimal. It was non-existent” should not have been appointed, much less elevated. That he was speaks volumes about how supposedly merit-based judicial appointments may not be necessarily so.
The second stumbling block to progress is the pipeline deflection that is still routinely deployed. Judicial diversity will come, its proponents say, when more women and minorities rise up the ranks of the bar and become eligible for appointment.
Time has proven that diversity trickles up at a glacial pace. It has been 119 years since women started practising law, and 20 years since women poured out of law schools outnumbering men. There are now 52,124 female lawyers in Canada feeding the pipeline to achieve gender parity on the bench. Except it hasn’t happened. Relying on trickle-up, without doing more, is not sufficient.
Then there is the rejoinder famously voiced by former Justice Minister Peter MacKay: women and minorities are underrepresented because they are not applying for judicial posts. It is true, in part. From 2006 to 2015, less than half as many women as men put their names forward for federal appointments.
Yet eligible women and minority lawyers could hardly be expected to apply in significant numbers when the odds of being appointed are against them. And the odds will likely remain against them as long as diversity is considered a deviation from merit, and our default image of the judge is, in Chief Justice McLachlin’s words, “old, male and wears pinstriped trousers.”
While recent reforms to the judicial appointments process are encouraging, albeit modest, continued progress cannot be assumed.
The problem of a judiciary that lacks diversity has deep roots, and requires equally deep solutions. Efforts to address it must confront the systematic disadvantage and discrimination of women and minority lawyers, conspicuously manifested in gender and racialized pay gaps (the earnings difference between men and women second-year lawyers is $10,000, and between racialized and non-racialized lawyers aged 40-44 is over $40,000), limiting their opportunities for progression. They must also include a serious re-think of the merit concept.
The journey to diversity won’t be easy — now is the time to make tracks.
Anna Wong is a civil litigator with Landy Marr Kats LLP, Vice-Chair of the Centre for Immigrants and Community Services, and a Trustee of the Toronto Lawyers Association.
 The Canadian Judicial Council, Commentaries on Judicial Conduct (Cowansville, Quebec: Yvon Blais, 1991), p. 12.