Merit should be the number-one criterion for judicial appointments, and there seems to be a startling coincidence between merit and skin colour on federally appointed courts. Out of the last 100 appointments to those courts, which include the superior courts of provinces, only two have been non-white. Is merit the near-exclusive preserve of white people?
Of course it’s not, and the pattern of exclusion – discovered in legwork by Globe and Mail reporter Kirk Makin – should be treated as a call to action by Justice Minister Rob Nicholson, the cabinet and Prime Minister Stephen Harper.
There is something deeply wrong with a judicial nominating process that appears to have a sustained habit of overlooking a large number of qualified Canadians. It may be that, in some provinces, a shortage exists of qualified candidates – a minimum of 10 years at the bar is the first prerequisite. But that should not be an issue in British Columbia, Ontario and Quebec. The paucity of non-white appointees suggests not just a shortage of qualified candidates but an absence. It’s simply not so.
The judicial appointments process is broken. If some qualified candidates are being ignored, it is no great leap to surmise that others are being appointed who may not be the most meritorious.
The buck stops somewhere. It might be supposed the process is at arm’s length from government and politics, because there exists a federal Office of the Commissioner for Federal Judicial Affairs Canada, which oversees a network of 17 judicial advisory committees. But the objectivity is illusory.
It is the Justice Minister – Rob Nicholson – who selects the members of the advisory committees from lists provided by “nominators” such as law societies. And after the committees review applicants and decide whether they are “recommended,” it is up to cabinet, on the advice of Mr. Nicholson, to choose. On chief justices and associate chief justices, the advice comes from the prime minister.
As a start, Mr. Nicholson, Mr. Harper and the rest of cabinet could show some sorely lacking leadership by ensuring that they keep track of diversity in appointments – and achieve some.