Time to name an Aboriginal justice to the Supreme Court: Hassan and Siddiqui

 Visible Minority LawyersNader Hassan and Fahad Siddiqui make the argument (the number of visible minority lawyers is higher than their article, based upon NHS data that I used in my book, Multiculturalism in Canada: Evidence and Anecdote):

These criteria narrow the field considerably [member of provincial superior court, bilingual, Maritime], and risk obscuring another important fact: our high court does not look like the rest of Canada. No Aboriginal or visible minority has ever been appointed to the Supreme Court. Regional representation — which convention so assiduously protects — is important, but in an increasingly ethnically and religiously diverse country, it is only one of many indicia of diversity.

Since the Abella Equality in Employment Royal Commission Report in 1984, a consensus has emerged among judges, lawyers and academics that judicial diversity matters. A diverse judiciary results in a broader range of perspectives, which is crucial to judicial decision-making. And greater judicial diversity fosters public confidence in the administration of justice.

Little progress has been made so far. Professor Rosemary Cairns Way of the University of Ottawa reports that Aboriginal and visible minority members account for roughly 23 per cent of the population, and yet from 2009 to 2014, only 1.04 per cent of appointees to the provincial superior courts were Aboriginal, and only 0.5 per cent were members of a visible minority group.

The same appears to be true of the senior reaches of the legal profession. The body that regulates lawyers in Ontario, the Law Society of Upper Canada, does not regularly collect comprehensive demographic data. But a Society report, released in 2010, shows that only 5 per cent of lawyers in Ontario between the ages of 45 and 64 are Aboriginals or visible minorities even though those two groups make up more than a fifth of that segment of the population.

It is sometimes argued that as Canada’s population diversifies, the legal profession will too. Problem solved — some years or decades down the line.

The statistics we have don’t bear out that claim though. Even among younger generations, Aboriginals and visible minorities are under-represented at the bar. And those who have managed to gain a foothold in the profession face unique challenges. The society reports that a majority of Aboriginal and visible minority lawyers believe that having a different cultural background has disadvantaged their careers. In that sense, the legal profession reflects trends in the broader job market. According to a recently released study led by University of Toronto researchers, black job applicants are 25.5 per cent more likely to land a job interview when they scrub their resumé of clues of their race.

The time has come for change. And this change requires leadership from the top. We need out-of-the box thinking, such as Trudeau’s laudable decision to name women to half his cabinet positions — including Canada’s first Aboriginal justice minister. The prime minister will have to take a similarly bold approach to fill the high court vacancy. An Aboriginal candidate should take priority. It’s an absolute shame that Canada’s highest court has never had representation from among our First Nations.

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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