By Benthara Pettah
In a Political Science class, the Professor remarked on how regional representation at the Supreme Court was necessary to represent the vast and diverse geography of Canada. As an international student in a land that embraces diversity, I wondered if the same diversity was reflected in the apex court of the country. Unfortunately, the answer is no, not enough.
In 2023, for the first time, there is a justice from the indigenous community on the Supreme Court. There are five women justices on the bench, also for the first time. However, there is not much racial diversity and there has never been a black judge.
Why diversity?
The diversity of backgrounds at the Supreme Court is not just a matter of representation but is also a requirement for sustaining the ideals of justice, equity and a sense of belonging. A diverse and inclusive judiciary is what enables the judiciary to be both independent and impartial. Because the values, perspectives and experiences of people appearing in court are different from those judging them, this could impact the ability of judges to appreciate their circumstances, assess their credibility and craft appropriate remedies. “As a law student,” Chief Justice McLachlin said in her Edinburgh speech, “I never dreamed that I would be called upon to decide whether a religious Muslim woman may be permitted to wear a Niqab while testifying, or whether same-sex couples should be allowed to marry, or whether children can refuse life-saving medical treatment on religious grounds”. Although judges are capable of making fair decisions for minority communities, the increasing number of women on the bench demonstrates how a heterogeneous bench is leading to enhanced judicial decisions.
As Chief Justice Wagner said in a news conference, diversity inspires and maintains public confidence in the judiciary: “All Canadians should be able to see themselves reflected in their justice system. Justice should not make a person feel like an outsider or an ‘other’ when they confront it”
Way Forward
Critics consider diversity an antithesis to the merit system, mostly because there are not many qualified candidates from the marginalised community. This is the consequence of generations-long systemic oppression and the disenfranchised people will require some more accessibility, such as scholarships and mentorship programs. Diversity does not dilute judicial excellence; it merely broadens the perspective of the justice system. Further, United Nations Sustainable Development Goal (SDG) 16 promotes the inclusion and participation of under-represented people in the judiciary.
There are also arguments that there are not many qualified candidates who are from diverse backgrounds. This just proves the systemic disparity and calls for more outreach programs and funding from the state. Widening the talent pool is a responsibility, not an act of charity.
For some, the diversity argument is just tokenism and low-hanging fruit. According to them, no good can come out of it in addressing the core issue of inclusion. However, Justice Shirzad in his speech mentioned that “diversity in substance is the answer. A bench that is diverse in substance, therefore, is not only representative of Canada’s diversity but is also empowered to render decisions informed by that diversity.There is general acknowledgement that New Zealand and Norway, leading examples of ethnic and gender diversity in the judiciary, have improved the overall performance of the judiciary.
Conclusion
The counterarguments to diversity only raise questions regarding the process of bringing diversity to the Bench. Bringing more qualified candidates from minority communities requires conscious effort from the government, such as providing accessible education and opportunities. In an interview with Christina Restoule, the manager of indigenous community services, at Conestoga College, on the conditions of indigenous students, she said “In order for students to want success, they need to see success.” Therefore, it is time that the government, along with community organisations and educational institutions, initiate policies that include widening the talent pool from diverse demographics.
In 2023, a woman from the indigenous community was nominated to the Supreme Court. This should be seen as the start not the end of the process of bringing more diversity to the judiciary. There should be more judges from diverse communities to reflect the democratic aspirations of the country.