The Ontario government has announced plans to bolster the diversity of provincial court appointments with reforms to the province’s Judicial Appointments Advisory Committee. Lawyers say that this is a needed move, as the Ontario Court of Justice is noticeably lacking in diversity, especially outside of Toronto.
“It’s a positive thing that the government is seeking a diversity of candidates when looking at judicial applications,” says Michael Spratt, partner with Abergel Goldstein & Partners LLP and also former vice president of the Defence Counsel Association of Ottawa.
“What we see across the province is a bench and judges that don’t necessarily reflect the communities in which they sit,” says Spratt. “This is particularly problematic in Ottawa where I can count the number of racialized judges on one hand — in fact, one finger.”
Spratt says that when judges reflect the diversity in their communities, it leads to a broader range of life experiences and enhances both the trial and sentencing process.
The proposed changes from the Ontario Court of Justice, the Ministry of the Attorney General and the province’s independent Judicial Appointments Advisory Committee will be encouraging legal professionals from more diverse communities to apply to become judges. Some of those changes include adding space on the forms for applicants to self-identify as being indigenous, belonging to a racialized community or other ethno-cultural group, having a disability or being LGBT. They are also looking to increase their outreach with advertising and information sessions to law associations. In addition, they will be collecting race-based data on judicial applications in order to better report on diversity.
The Justices of the Peace Appointments Advisory Committee will also amend its own application forms to include the same options to self-identify this fall.
The moves mirror those made by the federal government at the end of 2016 in reforming its own Judicial Advisory Committee with an eye to seeking more diversity on federally appointed benches, including provincial and territorial superior courts and the Federal Court.
Ontario Attorney General Yasir Naqvi says the provincial moves are complementary with the federal changes.
“We looked at the work they’ve done in terms of requiring people to self-identify their ethnicity, indigeneity, sexual orientation, gender identity . . .,” says Naqvi.
“[That’s] something we’re pursuing, but we’re going a step further. We are focusing on more unconscious bias training. We’re working with the Human Rights Commission on that for members of [the Judicial Appointments Advisory Committee] and [the Justices of the Peace Appointments Advisory Committee].”
Naqvi says better outreach among lawyers of diverse backgrounds will help outline the career path to becoming a judge if that’s what they are looking to accomplish, starting as early as law school.
Quinn Ross, president of the Ontario Bar Association, applauds the changes being made.
“I like that they are attempting to understand the systemic barriers [that] currently stand in the way of these communities having the place on the bench that they should otherwise have,” he says.
Leanne Wight, senior duty counsel for family court in Kingston, says that the only OCJ judges in both Kingston and Napanee are white men.
“I happen to be a woman of indigenous heritage, so it’s important to me as a practising lawyer to see my community reflected on the bench,” says Wight.
“I think particularly in this era of reconciliation, it’s important that the bench is really reflective of the Canadian demographic.”
Wight adds that she’s been pleased that recent federal appointments in the area have seen more women and indigenous members appointed, but the provincial appointments have to catch up.
Spratt says that diversifying appointments should mean more than just racial and ethnic diversity but also a diversity of experience.
Ross also agrees.
“A diverse bench that represents the population it serves and the profession from which it’s drawn is key,” says Ross.
“To the extent that the profession is reflective of the population is important, so if the profession is not reflective of the population, simply mirroring what’s available in the profession is what we’re trying to change.”
Ross adds that another quality that should be considered is youth and that there would be advantages to appointing younger members to the bench.
“There is a preclusion on application to the bench prior to 10 years of practice, and that makes perfect sense in order to obtain the necessary competencies to sit in judgment,” says Ross.
“There is a gap between that 10-year call point and when you actually see people starting to get appointed.”
Ross says the lack of people being appointed in their thirties and forties means that some stellar candidates are being overlooked and that younger appointments will mean more time on the bench to hone their skills and to develop institutional memory.
— With files from Alex Robinson