One year ago, I called for greater diversity in judicial appointments. The federal government responded, implementing significant changes in the appointment process, and prioritizing diversity as a form of merit.
Our ad hoc group, Lawyers for Representative Diversity, representing the majority of diverse legal organizations in Canada, then approached the provincial government in Ontario. The situation in Ontario has long been different than that of the federal government, primarily because the province is the most diverse in Canada.
Earlier this month, the provincial government announced new policies around judicial appointments, including options on application forms ” to self-identify as Indigenous, belonging to a racialized community or other ethnic or cultural group, a person with a disability, LGBTQ2+, or by gender.”
One of the greatest challenges we face in increasing the diversity in the judiciary is in getting accurate information to potential applicants in the bar. Both levels of government have committed to increasing outreach and information sessions to various law associations and law students to ensure they better understand what applications to the bench may entail.
The province will also collect race-based data on applicants and new appointments to strengthen reporting mechanisms to the bar and the public. This particular measure, which was also announced by the federal government last year, is one that we have been calling on for years, because aside from manually attempting to count who is actually appointed, the mechanisms of how governments actually attempt to create a diverse judiciary can be opaque.
Sabrina Lyon and Lorne Sossin focused on the history lack of transparency in the judicial appointment process in “Data and Diversity in the Canadian Justice Community” in 2014,
Since at least the Abella Equality in Employment Royal Commission Report in 1984, the link between obtaining and analyzing data on recruitment and achieving greater inclusion has been well-documented and oft-repeated… Our view is that, while better practices with respect to collecting and publishing data on diversity will not in and of themselves make the justice community more inclusive, it is difficult if not impossible to see how the justice community could become more inclusive without meaningful and reliable data.
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 nonwhite 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 greater collection of data of who is actually applying, not just those who are appointed, but also those who are applying. We know that the applications of highly talented diverse lawyers are being submitted, but we still do not know exactly how many. Greater scrutiny into why qualified diverse lawyers are not appointed may help eventually achieve the objectives of a bench that is reflective of the population of Canada.