September 30, 2020
Hon. David Lametti, PC, MP
Minister of Justice and Attorney-General of Canada
House of Commons
Ottawa, ON K1A 0A6
Dear Minister Lametti:
Re: Appointment of BIPOC judges to Canada’s Federal Courts
We are writing in support of the September 14, 2020 letter submitted to you by the Canadian Association of Refugee Lawyers and 35 signatory organizations calling for your immediate action to increase representation in judicial appointments to the Federal Court. We urge you to immediately appoint Black, Indigenous and People of Colour (BIPOC) judges to the federal courts and to reform the appointment criteria for their appointments to ensure that the experiences of BIPOC applicants are recognized and reflected in the panel of their decision-makers.
It is clear that the current members of the Federal Courts do not reflect the racial diversity of Canada. Only two BIPOC judges sit on the Federal Court’s roster of 35 judges and 9 supernumeraries. We echo the references of the September 14 letter to statements made by esteemed justices of the Supreme Court such as Chief Justice Richard Wagener and former Chief Justice Beverley McLachlin on the importance of representation on the bench to accurately reflect the applicants appearing before the court. Despite naming judicial diversity to include people of all gender identities, Indigenous Peoples, racialized people, persons with disabilities and minority groups as a priority for this Government in 2015 and the reaffirmation of this priority in 2019, there has been little change. Since the 2016 overhaul of the judicial appointment process, only 3% of federal judicial appointments self-identify as Indigenous and 8% as visible minorities.[1] We similarly echo the observation of the Parliamentary Black Caucus that consultation, studies, reports, and proposals no longer suffice to address the issue of lacking diversity in the judicial system.[2] Canadians and applicants to the federal judicial system need change now.
On this basis, we propose these two immediate calls to action:
1. Appoint BIPOC judges to the six current vacancies on the Federal Court of Canada.
Last year, the Judicial Advisory Committees recognized 13 Indigenous and visible minority applicants as “Highly Recommended”, but the judicial appointments did not reflect this reality. Of the 86 judges appointed last year, only two were Indigenous persons and four were visible minorities.[3] At this time, there are no female BIPOC judges on the Federal Court.
With this startling backdrop, we turn our attention to the current six vacancies in the Federal Court. We advocate that these vacancies be filled with BIPOC judges with particular attention to female and female-identifying BIPOC candidates in order to address the unique issues at the intersection of gender and race faced by female BIPOC individuals. Seeing as there is no shortage of qualified applicants from Indigenous and visible minority groups, appointing BIPOC judges should be no feat at all. The effects of this would be overwhelmingly positive in advancing diversity, inclusion and representation in the judicial system as but one of many steps to righting the detrimental effects of institutional racism in the history of Canada.
2. Reformulate the assessment criteria for judicial appointments to take into account systemic barriers that impede the appointment of BIPOC judges and implement an overarching commitment to appoint BIPOC judges.
We reaffirm the recommendations of the September 14 letter, namely two courses of action to amend the judicial appointment assessment criteria:
1) a recognition of barriers that uniquely and disproportionately impact BIPOC candidates; and
2) the insertion of criteria to encourage the nomination and appointment of BIPOC candidates.
The requirement that a candidate speak English and French has posed an obstacle to the appointment of BIPOC individuals to the Supreme Court. While bilingualism is not required for appointment to the Federal Court or Federal Court of Appeal, it is listed among the assessment criteria. Since BIPOC candidates are not well-represented among those who are functionally bilingual in Canada’s two official languages[4], bilingual ability as an assessment criterion forms a systemic barrier to the appointment of BIPOC individuals.
Secondly, we compel the creation of clear guidance for Judicial Advisory Committees in their charge to generate a pool of candidates that is “gender-balanced and reflective of the diversity of each jurisdiction.” We repeat and adopt the recommendations of the September 14 letter that the Judicial Advisory Committees keep the following in mind:
1) an underlying goal in the amendment of assessment criteria to recognize the impact of institutional racism in the judicial system to prioritize BIPOC applicants until racial parity in the judiciary has been reached; and
2) BIPOC candidates offer skills and perspectives that are not necessarily captured in the current rigid requirements such as the bilingualism requirement and membership in a BIPOC community should be inserted in the characteristics of the assessment criteria.
Each passing day with the status quo perpetuates the long history of institutional racism in Canada and the failure to recognize the lived experiences and perspectives of BIPOC individuals through decisions made by individuals who do not reflect the cultural fabric of our country.
Yours Sincerely,
Federation of Asian Canadian Lawyers (Western Chapter)
[1] Stefanovich, Olivia, “Federal Court justice says judicial diversity targets need ‘aggressive’ timelines,” CBC News, June 30, 2020, https://www.cbc.ca/news/politics/stefanovich-diversity-justice-system-1.5625586.
[2] Statement by the Parliamentary Black Caucus. (June 16, 2020) https://assets.documentcloud.org/documents/6949654/BPC Statement-Bilingual.pdf
[3] Office of the Commissioner for Federal Judicial Affairs Canada, “Statistics regarding Judicial Appointments and Appointees,” https://www.fja.gc.ca/appointments-nominations/StatisticsCandidate-StatistiquesCandidat-2019-eng.html
[4] Beg, Samreen and Lorne Sossin. "Diversity, Transparency & Inclusion in Canada’s Judiciary." (December 2016). Debating Judicial Appointments in an Age of Diversity.