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Bill Sundhu a barrister and solicitor in Kamloops, B.C. at the Old Court House on Friday March 13, 2012. (Jeff Bassett for the Globe and Mail)
Bill Sundhu a barrister and solicitor in Kamloops, B.C. at the Old Court House on Friday March 13, 2012. (Jeff Bassett for the Globe and Mail)

Judicial Review

Minority lawyers demand diversity among appointed judges Add to ...

A groundswell of visible minority groups is challenging a judicial appointment process they perceive as biased against non-white candidates.

Aboriginal and black leaders added their voices on Monday to earlier protests from an Asian lawyers’ association, all of them expressing frustration that judicial candidates in their communities are repeatedly passed over.

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A recent Globe and Mail survey found 98 of the past 100 judges appointed by the Harper government to serve in provinces across the country were white.

In a statement to Prime Minister Stephen Harper on Tuesday, the Indigenous Bar Association said the government has no excuse for ignoring qualified aboriginal lawyers when it fills judicial vacancies.

“Aboriginal people have been incorporated into the Canadian Constitution, but we still haven’t been incorporated into the judicial system,” Koren Lightning-Earle, president of the IBA, said in an interview.

The organization’s sentiments were echoed by the president of the Canadian Association of Black Lawyers, Andrew Alleyne, who accused both federal and provincial governments of ignoring repeated requests over the years to diversify the judiciary.

“The number of black judges across Canada could probably all fit into my office right now,” said Mr. Alleyne, a Toronto lawyer with Fasken Martineau. “I know that recommendations are being made for strong minority candidates, but once they get to a certain level, they don’t move onto the short list.”

At any given time, about 1,100 judges appointed by the federal government are serving on provincial superior courts, the Federal Court of Canada, the Federal Court of Appeal, the Tax Court of Canada and the Supreme Court of Canada.

The federal government uses a system of regional committees to vet applicants. They are composed largely of senior lawyers, judges and police or community members appointed by Ottawa. Those designated as “recommended” are put on a list that is debated in the Justice Department and at cabinet.

The Globe found two exceptions to the pattern of white appointees in the past three and a half years – Métis judges appointed in B.C. and Nova Scotia.

Ms. Lightning-Earle said that the Conservative government “seems to equate merit to colour and political ideology. It means that the Conservatives see no 'merit' in the contributions that aboriginal lawyers and lawyers from racial minority communities make to the Canadian justice system.”

As a first step, she said that aboriginal organizations should be consulted about possible improvements to the appointment process. “We have never been given that opportunity or allowed in those doors, so to speak,” Ms. Lightning-Earle said. “We would love to be engaged.”

In a strong statement last month, the Federation of Asian Canadian Lawyers exhorted the government to make its appointment process more transparent and representative of minorities.

The diversity problem remains largely hidden because neither the federal government nor any of the major judicial organizations in the country track minority appointments.

Mr. Alleyne said that, besides bringing unique life experiences to their own courtrooms, minority judges provide valuable cultural insights to colleagues presiding over trials involving minority members.

“If their only level of experience is being a white male coming from a privileged background, I’m not sure they have the skills to adequately judge those who come before them – particularly when a crime or offence deals with issues of race,” he said.

A Justice Department spokesman, Julie Di Mambro, said that while the government has no statistics available on minority appointments, they reflect the recommendations of 17 judicial advisory committees across the country.

“Our government is guided by the principles of merit and legal excellence in the selection and appointment of judges,” she said.

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