REFORMING JUDICIAL APPOINTMENTS: CHANGE AND CHALLENGE.

• Author: Way, Rosemary Cairns
• Position: Response to article by Peter H. Russell in this issue, p. 3 - Forum: Issues in Administrative and Constitutional Law

Introduction

The Ivan C. Rand Memorial Lecture Series has a history of topicality. (1) On October 20, 2016, Professor Peter H. Russell delivered the 23rd lecture, (2) a thoughtful analysis of the reformed Supreme Court of Canada selection process announced by Prime Minister Trudeau in August 2016. I was delighted to participate as a member of the discussant panel. Three days before the lecture, the Prime Minister announced the nomination of Justice Malcolm Rowe to fill the seat vacated by the Honourable Justice Thomas Cromwell. The nomination provided concrete fodder for the lecture and discussion, particularly with respect to two issues which garnered public attention in the lead-up: the requirement of functional bilingualism, and the immediate fate of the convention of regional representation. The icing on the cake came on the day of the lecture, when the federal government announced substantial changes to the federal judicial appointment process. These changes were intended, in their words, to "increase the openness, transparency, accountability, and diversity of Canada's judiciary." (3) It was hard not to wonder if the lecture planners had access to insider knowledge.

In his 2008 Rand lecture, "Judicial Appointments, Democratic Aspirations, and the Culture of Accountability", (4) Professor Lome Sossin noted the historic complacency which has surrounded judicial appointment in Canada. For many, a tradition of judicial excellence meant that "fixing judicial appointment truly is a solution in search of a problem." (5) In his lecture, Professor Sossin challenged this view, arguing that the system of appointment was both "inconsistent with the independence of the judiciary" and out-of-step with contemporary political norms of transparency and accountability. (6) The timing of his critique was not a coincidence. In 2006, Prime Minister Stephen Harper entered office with a promise to bring transparency and accountability to judicial appointments. In this, he was capitalizing on reforms to the Supreme Court process initiated by the previous liberal government, (7) as well as reforms to the section 96 process introduced by Prime Minister Mulroney in 1988. Prime Minister Harper's commitment to reforming Supreme Court appointments was inconsistent and ultimately ad hoc, (8) but he did make relatively dramatic shifts in both the composition and powers of the Judicial Advisory Committees (JACs) which screened section 96 appointments. (9) These changes were controversial and were subjected to sustained critique by the legal academy, the legal profession, policy makers and even the judiciary. (10) The debate appears to have catalyzed the far-reaching reforms to judicial appointments announced by the Trudeau government in August and October of 2016. There is no doubt that the politicization of judicial appointment has not ended with the defeat of the Harper government. (11) Rather, the politics have shifted. The question now is whether the current reforms are cut from the same (but differently patterned) cloth, or whether they are in fact more consistent with our democratic aspirations and constitutional commitments. In my view, the answer to this will depend on the nature of the constraints these reforms impose on the mostly unfettered executive prerogative to appoint judges. Do they, in theory and in practice, tend to enhance the constitutional guarantees of judicial independence and impartiality? This is a big question, and one which cannot be answered this early. My present aim is far more modest; I intend to offer a preliminary assessment of the ways in which the current reforms are informed by and consistent with a commitment to judicial diversity. (12) There is no doubt that they are a far cry from the "deliberate disregard of diversity" (13) displayed by the former government.

There are three parts to my discussion. First, I explain why diversity matters to judging. Second, I consider how diversity ideals inform the new Supreme Court of Canada appointment process, and examine the conflicting challenges presented by a commitment to diversity measured on axes of region, language and identity. Third, I briefly examine the ways in which the section 96 reforms reflect the same public commitment to diversity.

Why Diversity Matters

The last decades have seen the emergence of a remarkable professional and intellectual consensus on the importance of a judicial appointments process which takes account of diversity. In 2012, Chief Justice Beverley McLachlin publicly recognized the need for "a bench that better mirrors the people it judges." (14) In August of 2013, the CBA reiterated its long-standing call for increased diversity on the bench, pointing out that "the low number of women and members of racialized and other minority groups appointed to the federal courts does not reflect the gender balance or diversity in the Canadian population." (15) The urgent need for Aboriginal judges has been highlighted by the CBA and the Indigenous Bar Association, (16) and the fact that this need persists at a time when there is a judicially acknowledged crisis of criminal justice legitimacy for aboriginal peoples (17) makes it especially urgent.

Until October of 2016, the calls for change had little apparent impact on the federal appointments process. Canada's federal judiciary remains overwhelmingly white and male, at the same time as Canadian society grows increasingly diverse. The number of women on the federal bench has crept upwards at a glacial pace. (18) As of April 30, 2016, only 35% of the federal bench was female. Statistics on indigeneity and race are even more troubling. In a five-year study of federal appointments, from 2009-14, I concluded that Aboriginal judges were being appointed to superior courts at a rate of barely more than 1%, while visible minority judges were appointed at a rate of half that. (19) Meanwhile, almost 20% of Canadians are members of visible minority communities. In large urban centres like Toronto and Vancouver, visible minorities account for almost 50% of the population. (20) Aboriginal peoples make up 4% of the Canadian population, and the population is growing. (21) There is clear evidence that the demographics of the legal profession are changing, although the profession is not as diverse as the general population. (22) Nevertheless a substantial pool of exceptionally talented women, aboriginal, and visible minority lawyers are qualified for appointment.

Why does diversity matter? The significance of diversity to judging depends on a claim about who judges are--products of lived experience--and what judges do--apply the law and exercise discretion. Even the Chief Justice has acknowledged that "a variety of subjective influences--our beliefs about the world and about human nature, our emotions, and our sense of justice--are inescapably part of judicial decision-making." (23) The more diverse the bench, the better the quality of judgment. Increasing the range of perspectives and experiences among the judiciary will increase the likelihood of truly impartial judgment--judgment that does not unintentionally replicate the perspectives and values of a limited subset of human experience. A diverse bench increases the judiciary's capacity to be both individually and structurally (institutionally) impartial. (24) It also provides a public guarantee that appointments are animated by the constitutional norm of antidiscrimination. A homogenous bench suggests an appointments process which disproportionately denies opportunities to indigenous peoples, racialized individuals, women, and other members of equality-seeking groups. This is not a claim about intention. Rather it is a claim that executive discretion constrained only by an uncritical allegiance to merit has the potential to reinforce an unrepresentative status quo, while at the same time resisting substantive change. In the absence of transparency, the only way to assess the process is to observe the results. And when the results are an unrepresentative bench, the public has a right to worry that the institution charged with the delivery of impartial justice and the protection of the rule of law may be institutionally incapable of delivering on these promises. Justice, in a diverse society, is more likely to be both done...