A Toronto lawyer says changes to the way the prime minister appoints Supreme Court justices will make the process more transparent but is unlikely to increase diversity on Canada's highest court.
Not yet, anyway.
Ranjan Agarwal, president of the South Asian Bar Association of Toronto and a partner at Bennett Jones LLP, told Metro Morning that the problem is Supreme Court justices tend to come from provincial Courts of Appeal and there are few diverse candidates to choose from at that level.
Diversity, he said, must start with the appointment of diverse judges at lower court levels.
He acknowledged that Prime Minister Justin Trudeau, who ultimately makes the appointment, is making an effort to encourage diversity.
"You have to remember one structural fact. For the most part, our Supreme Court justices are elevated from the provincial Courts of Appeal. And the provincial Court of Appeal judges are often elevated from the provincial trial courts. If you will, there's a promotion system much like there is in sports. Those lower courts are hugely non-diverse," he said Wednesday.
"The real thing we want to see is the feeder system, the pool, get better with more diverse candidates because then the prime minister has a more diverse set of choices."
Trudeau announced this week that the application process will be open to enable any qualified Canadian lawyer or judge who is functionally bilingual and "representative of the diversity of our great country."
An an independent advisory committee made up of seven people will receive applications, a shortlist of three to five candidates will be submitted for consideration, the shortlist will be reviewed by interested parties, and applicants will have to fill out a questionnaire.
Justice Minister Jody Wilson-Raybould and Kim Campbell, chair of the advisory committee, will appear before a parliamentary committee to explain the selection process, the eventual nominee will be questioned by a number of MPs and senators from all parties, and the prime minister will make the appointment.
Under former Prime Minister Stephen Harper, Supreme Court justices were appointed without much consultation of Parliament.
Diversity push should start earlier, Agarwal says
Agarwal said the key to increasing diversity among Court of Appeal judges is to appoint younger judges to provincial trial courts. Currently, lawyers are appointed to be provincial trial court judges when they tend to be in their 50s.
But to pull from a more diverse pool, the candidates need to be younger, he said, because children of immigrants from the 1960s and 1970s are now lawyers in Canada.
"If you start appointing diverse judges to the provincial trial bench now, you will create that pool in the feeder system," he said.
He said the independent advisory committee that will accept applications and draw up the shortlist also fails to include representatives of immigrant communities, although it does include Stephen Kakfwi, former N.W.T. premier and former president of the Dene Nation.
Agarwal said the new selection process is a "game-changer" that will shed light on how a Supreme Court justice is appointed but lack of diversity is a deeper problem throughout the legal system.
"The law is an entrenched place. There are unconscious biases that creep into any decision-making process, so when people are thinking about who to promote, they will often look to people who are like them."
Ethnic diversity matters, he said, more than regional representation. Given technological advances, he said there are not huge differences between lawyers who grow up in Toronto, Vancouver or Halifax, in terms of upbringing, educational background, and point of view.
Diverse bench brings new perspectives: PM
A diverse judge, whether at the Supreme Court, Court of Appeal or provincial trial court level, makes a difference, he said.
"When diverse individuals walk into a courtroom, and they see someone who looks like them who is sitting on the bench, not just lawyers, not just the court registrar, not just the public, but a judge who shares a lived experience with them, I think they believe there is going to be a fairer system of justice."
In an article published in the Globe and Mail, Trudeau wrote: "A diverse bench brings different and valuable perspectives to the decision-making process, whether informed by gender, ethnicity, personal history or the myriad other things that make us who we are."