Aboriginal - First Nations Accountability Civil liberties Justice Race and ethnicity

The sorry state of Canadian civil liberties: Defining away ‘diversity’


Photo above appears to be from The Canadian Press (original source unknown). The white rubber wristband federal Justice Minister Peter MacKay appears to wear is interesting. It’s popularly associated with the Make Poverty History campaign. Among the issues discussed by the Canadian MPH campaign is homeless veterans – interesting, given the accompanying Support Our Troops lapel pin.

Cynical symbology is a useful segue to the latest scandal Mr. MacKay finds himself facing, over a Mother’s Day greeting / supposedly sexist quip about female judges. Its absurdity was recently highlighted by an exchange of open letters between a columnist and his wife.

What the beleaguered Justice Minister wrote or said is secondary to his (can’t stress this point often enough) as well as previous Canadian governments’ policy decisions and resulting outcomes. And those outcomes are far worse for racial / ethno-cultural minorities than for women. Which begs the question(s): When/why/how did ‘diversity’ in judicial appointments become exclusively associated with female nominees, especially when the imbalance is many times greater for racial and other actual minority groups?

Despite half the population being female, half of judicial appointees aren’t. That may in part have to do with institutional prejudice, women’s historical labour market participation, a combination of the two, and possibly other reasons. Nevertheless, female justices have been appointed at every level, including the Supreme Court of Canada. One third of current SCC justices are female, as are between 30 and 40 percent of all federal judicial appointees. It’s not perfectly representative, but it’s close. A lot closer than for racial minorities at any rate.

Diversity gap on the bench: Do you see yourself reflected in the Canadian judiciary? For many in our increasingly diverse society and profession, the answer is “no”.
Mark Berlin, Paul Jonathan Saguil, Anna Wong, Just. October, 2013

According to officlal stats, about one in four Canadians identify as racial minority; about five percent identify as aboriginal / First Nations. Yet none have ever been appointed to the SCC, and a negligible few to the federal and provincial courts. So few in fact, that

Of 100 new federally appointed judges 98 are white
Kirk Makin, The Globe and Mail April 17, 2012

Tories chastised for lack of racial diversity in judicial appointments
In the past five and a half years, the federal government has appointed just three non-white judges, out of nearly 200
Sean Fine, The Globe and Mail April 10, 2014

Yet the current talk of ‘diversity’ in judicial appointments focuses exclusively on gender, as it almost always does (the referenced articles being rare exceptions – kudos to the Globe justice reporters).

Forget MacKay, a woman’s place is on the bench
Cairns et al, The Globe and Mail, Friday, June 20 2014

It’s worth noting that last opinion piece was penned by law profs from University of Ottawa, an institution (in)famous for systemic racism. Perhaps the lack of racial diversity goes far further back in the system. It would be interesting to see application and admission stats from university law programs and law societies. One would think the Canadian Bar Association, a legal advocacy group or a government agency would have already conducted such research (will update if/when we come across any).

A CBC exec recently commented: “You don’t have to be diverse to do diversity. But you have to believe this is a priority.” That seems to be the prevailing ethos. While by outward appearances it seems to work for the CBC, it clearly doesn’t work in the federal government bureaucracy, as evidenced by the lack of diversity in its judicial appointments. 0 out of the 100 appointees mentioned in the referenced 2012 article were members of a visible minority (the two the Globe identified were Métis, defined as ‘aboriginal peoples’ – not considered racial minorities for sensitive historical reasons).

Perhaps it’s worth reconsidering the notion that an organisation / institution needn’t be diverse to “do diversity”. It may not be a sufficient condition, but adequate representation appears to be a necessary one, at least in the Canadian legal and justice systems. It would be rather cynical to dissociate poorer social and economic justice outcomes for Canadian racial minority and aboriginal / First Nations groups from the startling lack of diversity in Canadian judicial appointments.

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