On Meritorious Judicial Appointments: Balancing Competency and Diversity

A common conversation between our Amici Curiae volunteer paralegal and a self-represented litigant, who is a new to Canada, is about how nervous they are about appearing in front of a judge. Is it true that they are all men? All white? With no lawyer, they are concerned about fairness.

In 2012, then Supreme Court of Canada Chief Justice McLachlin speaking in Edinburgh at the Judicial Studies Committee Inaugural Annual Lecture, suggested that what we need is informed impartiality:

“Indeed, it is why the blindfolded figure of Justitia is an enduring metaphor for the judicial function. But what does impartiality really mean? And how does it play out in a diverse society, made up of people of many creeds and cultures? Let me suggest that the image of the blind judge must be supplemented by the image of the informed judge, hence the phrase, ―informed impartiality.

Understanding impartiality begins with the recognition that judges are human beings. The great American judge Jerome Frank once wrote: ―Much harm is done by the myth that, 7 merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.‖6 Like everyone else, judges possess preferences, convictions and — yes — prejudices. Judges are not social or political eunuchs.

They arrive at the bench shaped by their experiences and by the perspectives of the communities from which they come. As human beings, they cannot help but to bring these ―leanings of the mind‖ to the act of judging. In short, judging is not an exercise of cold reason, uncontaminated by personal views and preconceptions."

On June 22, 2018, our prime minister appointed a new associate chief justice for the Supreme Court of BC.

On the same day, Provincial Court of BC Acting Chief Judge Gillespie announced that Lieutenant Governor in Council signed Orders in Council appointing 3 new judges.

Perhaps the timing was serendipitous, but if there was anything that the attendees of the Diversity on the Bench panel that was hosted by the CBABC, FACLBC, SABABC, VBA and Law Foundation of BC on June 6, 2018 learned, our courts are hard at work trying to achieve greater diversity in gender and ethnicity. I arrived early to get a good seat as I expected this panel on Diversity on the Bench to be packed just like it was last May 27, 2014. Waiting for 4 years was just too long to wait.

Supreme Court of BC Chief Justice Hinkson opened by quoting recently retired Supreme Court of Canada Chief Justice McLachlin:

“We should only appoint people of merit. We must never compromise on the quality of the judges we appoint. But merit must be understood in the sense of ability to do the job and in full appreciation of the diverse perspectives and legitimacy that judges from diverse backgrounds bring to the bench. When we understand merit in this way, we open the door to appointing women and minorities and to building a judiciary that is a more accurate reflection of the society it serves.”

Chief Justice HInkson observed the very fact that we talk about diversity among the judiciary indicates that it may be perceived to be problem; that is, there is a lack of diversity.

“Historically there was little diversity amongst the judiciary in Canada. Today diversity on the bench is recognized as being important so the question is what is being done about it, across Canada and in particular at the BC Supreme Court.

Recognizing that diversity can mean different things to different people and in different situations. diversity in the legal context in Canada tends to call to mind characteristics that feature as protected grounds in non-discrimination legislation: race, national origin, ethnicity, Indigenous status, gender identity, sexual orientation, (dis)ability, religious belief and practices, and linguistic ability. For some Canadians, an understanding of diversity encompasses socio-economic standing as well, although this is not a ground of non-discrimination recognized in provincial human rights codes or the Charter.

Diversity is important amongst judges, first, because a judge may bring a different perspective to the court as a result of their background, one that is important or meaningful in that judicial context because it allows the judge to appreciate particular situations brought before the court more fully.”

Amici Curiae assists many battered women complete their legal forms. Years ago, I came across R v Lavellee 1990 CanLII 95 (SCC). It was here that I first saw the far-reaching impact when a Canadian woman jurist Justice Bertha Wilson re-framed a gendered legal term like the “ordinary man”.

Chief Justice Hinkson then linked judicial legitimacy to the rule of law. The more that judges are seen by the public to appreciate and understand the values and perspectives of the people they serve, the more likely it is that those people will see the courts and their decisions as deserving of respect.

Years ago, Provincial Court of BC Judge St. Pierre, while addressing our volunteers, said: “While judges like to think of themselves as possessing a certain skill-set as it relates to unbiased judgment, they are still not impervious to unconscious bias. They are human after all. Awareness alone is not enough, but it is a good first step.

While it would be impossible to ignore attributes like gender, race, and socioeconomic status of the parties before them, perhaps the judiciary can set these factors aside when writing reasons for judgment.”

Equally noteworthy, last February 2015, then Provincial Court of BC Associate Chief Judge Nancy Phillips, in recognizing that Amici Curiae clients may come from places where respect for the rule of law may be different, spoke about The Imperative of Cultural Awareness. She encouraged the audience to try and to take some time, even a few minutes, to try and understand the person appearing before them.

Chief Justice Hinkson made it clear that judges can and do make fair and impartial decisions every day across Canada on issues that they may not have encountered in their personal lives. "But a diverse bench may bring different and valuable insights to the decision-making process that ultimately result in better decisions. These decisions in turn enrich the Court’s capacity to appreciate the legal issues of our multicultural society."

He reported in 2017, 441 candidates were screened by the JACS across the country:

• 129 were highly recommended
• 82 were recommended 
• 230 the Committees declined to recommend.

Of the 74 new judges appointed across Canada between October 2016 and October 2017:

• 50% were women
• 3 were Indigenous
• 9 were visible minorities
• 15 identified as from minority ethnic or cultural groups
• 4 were LGBTQ and 
• 1 was a person identified as having a disability.

Of the 18 judges appointed to the BC Supreme Court over the past 18 months, half are women, four are South Asian, and one is Indigenous. Currently, about 40% of the BC Supreme Court judges and slightly more than 50% of the BC Court of Appeal are women.

3 days after the appointment of 4 female judges, the Provincial Court of BC released its Judicial Council of BC 2017 Annual Report. It heralded many firsts, including online application system and new records set in the number of applications and women appointments. I was glad to see the court’s commitment to transparency and its recognition of ethnicity as an important benchmark. 

Inviting judges to share their lived experience as members of a particular ethnic or cultural group can be challenging, but the results are rewarding and part of the organic process of development. There has been much progress since the 2014 Diversity on the Bench panel, and it leaves many looking forward to the next panel, hoping that the organizers do not wait another four years to host the next one, and wondering what significant progress will be celebrated at that time.

Flipping the question on self-represented litigants, how do judges work with them and what techniques do they apply to provide some dose of judicial fairness? Hear Provincial Court of BC Judge Paul Meyers on July 17 from 530 to 7pm. To register, click here.

Dom Bautista is the executive director of Amici Curiae Friendship Society. Powered by volunteer paralegals and supported by the profession, Amici Curiae assists the public in completing legal forms. https://www.legalformsbc.ca/