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Opinion Supreme Court bench may become more diverse, but not ideologically

If Justin Trudeau wants Canadians to associate just one concept with his government, it would seem to be diversity. The Prime Minister talks about it endlessly, as if inclusiveness alone confers a degree of moral superiority on his administration that overrides considerations of merit or competence.

Make no mistake, diversity is Canada's strength. And it is incumbent on the prime minister of the day to lead by example and help to ensure that previously underrepresented minorities finally assume their rightful place in all public institutions, from the federal cabinet to the courts.

Where Mr. Trudeau goes off the rails, however, is in embracing diversity as a political gimmick to burnish his image. The Trudeau Liberals seek to federate every aggrieved minority out there (with the exception of francophone Quebeckers) in a vast coalition of the historically oppressed. It may pay political dividends, but this kind of identity politics defines Canadians by their differences rather than their similarities, shared history and collective challenges.

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Justin Trudeau: Why Canada has a new way to choose Supreme Court judges

Now, Mr. Trudeau is reforming the selection process for Supreme Court judges to ensure that, in his words, Canada's top judicial body is "representative of the diversity of the country." It remains to be seen whether this latest procedural tinkering is more than window dressing, since the Prime Minister retains his prerogative to name whomever he pleases. But Mr. Trudeau has already stacked the decks by directing a new advisory body that will draw up a short list of potential nominees to replace retiring Justice Thomas Cromwell to take into account his goal of a more diverse judiciary – at least as Liberals define the term.

As one Liberal Party insider told The Globe and Mail's Sean Fine: "If it's possible, they're going to give it to a female, bilingual, visible minority." That is, if they can find one who also fits the criterion of coming, like Justice Cromwell, from Atlantic Canada. It may be that, for his first top court appointment, Mr. Trudeau will have to pick a white male Acadian unless he decides to break entirely with convention and ignore regional representation.

Canadians are lucky that, in Jody Wilson-Raybould, Mr. Trudeau has the most qualified Justice Minister in recent memory. As an aboriginal and former adviser to the B.C. Treaty Commission overseeing treaty negotiations between First Nations and the Crown, she is sensitive to the balancing act involved in governing and not prone to political pandering. She can be counted on to recommend judges of the highest calibre, regardless of their origins.

Just don't expect Mr. Trudeau's definition of diversity on the bench to include ideological or philosophical variety. The process he has put in place pretty much ensures the selection of liberal judges. Three of the advisory body's seven members are Liberal appointees. Even if you might expect former Progressive Conservative prime minister Kim Campbell to argue for ideological diversity on the court, it's an argument she's likely to lose.

To be sure, the Liberal government has an interest in appointing judges that will uphold its laws, including its controversial legislation on assisted dying. But Mr. Trudeau has a greater political interest in naming judges that tick off his diversity boxes.

And with a majority of his advisory body's members chosen directly by the legal profession – with the Canadian Bar Association, the Canadian Judicial Council, the Federation of Law Societies of Canada and the Canadian Council of Law Deans each getting to pick a member – the short list of potential top court judges Mr. Trudeau receives will reflect a liberal activist bent that sees discrimination lurking in every crevice of society.

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Unfortunately, this can sometimes result in the narrow-mindedness that led the law societies of Ontario, British Columbia and Nova Scotia to ban future law school graduates of Trinity Western University, who agree as students to abstain from sex outside heterosexual marriage, from practising law in their provinces. Split lower-court decisions mean the Supreme Court will have to settle this issue.

An open-and-shut case? TWU's "community covenant" may seem offensive or homophobic to many, including myself, because it implies that homosexuality is morally wrong. But, as Nova Scotia Supreme Court Justice Jamie Campbell, a Conservative appointee, concluded in striking down that province's law society ban: "The refusal to accept the legitimacy of institutions because of a concern about the perception of the state endorsing their religiously informed moral positions would have a chilling effect on the liberty of conscience and freedom of religion."

After all, Mr. Trudeau, that is what true diversity is all about.

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