Canada’s Supreme Court already requires diversity. Why not racial diversity, too?

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Janani Shanmuganathan is a partner at Goddard & Shanmuganathan LLP, where she practices criminal and regulatory law. Richa Sandill is an employee and applicant-side employment and human rights lawyer, and legal counsel at the Human Rights Legal Support Centre. Annie Tayyab is a lawyer at Orr Taylor LLP, a commercial and class actions litigation boutique. All three are board members of the South Asian Bar Association of Toronto, an organization devoted to promoting representation in the profession and among the judiciary.

This summer, Justin Trudeau must do something that no prime minister has ever done before in the history of our country – not because of any law or rule that requires it, but because the time has simply come to do so. He must appoint a non-white Canadian to replace retiring Justice Rosalie Abella as the next judge on the Supreme Court of Canada.

Canada’s highest court has existed for more than 140 years – Justice Abella’s replacement will be the 90th judge to serve on the illustrious court. But to date, every single one of those judges, for every single one of those years, has been white. In a country where, according to the last census, more than one-fifth of the population is comprised of people of colour, this uninterrupted streak of whiteness cannot continue.

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The appointment of a racialized judge won’t just be a token gesture, or diversity for diversity’s sake. And it won’t mean that some more “qualified” white person is passed over just because they’re white. Qualified racialized candidates exist, and diversity on the bench will simply make the court better. Studies have shown that diversity leads to better decision-making. Having people with different backgrounds brings new ideas and fresh perspectives to the table, and also makes groups consider alternative arguments. In fact, just having someone perceived as an “outsider” in the room can improve the way the majority discusses and thinks about issues.

The government has already long recognized the need for one type of diversity on the Supreme Court: one based on region. Historically, the court has been composed of judges drawn from different regions in Canada: one from the Atlantic provinces, two from the Western provinces, three from Ontario, and three from Quebec. The thinking has been that different regions have different interests and perspectives, and they all need a voice on the bench. Why would it be any different for race?

The Supreme Court appointed its first female judge in 1982. By 2011, the number of female judges had risen to four. No one would deny that adding women to the court, including its highly influential former chief justice Beverley McLachlin, has provided an invaluable perspective.

When an all-white court decides tough cases that raise challenging issues about race, Canada’s most important legal institution looks deeply out of touch – and the Supreme Court is facing cases like these more and more often. In 2015, the court had to rule on whether an Indigenous person had the constitutional right to a representative jury (R. v. Kokopenace). In 2019, the court had to opine on the role played by race when the police arbitrarily detained a young, racialized man who was doing nothing more than hanging out in a backyard (R. v. Le). And later this year, the court will have to decide whether making conditional sentences (i.e. house arrest) unavailable for drug offences such as importing is discriminatory because it further deepens the crisis of Indigenous overrepresentation in our prisons. (R. v. Sharma).

Having more women judges on the Supreme Court has been a great advancement, but more white women aren’t the diversity the courts most desperately need in 2021. The urgent mission of diversity today is to appoint more racialized people to the judiciary. Mr. Trudeau has said that he recognizes the desire of Canadians to see institutions and appointments across the government that “reflect the diversity of Canada,” and that his government will “appoint people who look like Canada.” But actions speak louder than words, and there is one easy way to put these words into action: by appointing Canada’s first racialized judge to the Supreme Court of Canada.

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