On July 1, 2021, Justice Rosalie Silberman Abella will retire from the Supreme Court of Canada (“SCC”). Justice Abella, the first Jewish woman and former refugee to sit on Canada’s highest court, will step down after 17 years at the Court, and 45 years as a judge. Before her appointment to the SCC, she served on the Ontario Family Court and Ontario Court of Appeal.
In the coming months, Prime Minister Justin Trudeau will choose from a shortlist of candidates handpicked by an independent advisory board to decide who will succeed her. The independent advisory board is made up of major players in the Canadian legal community, including former Prime Minister Kim Campbell, former SCC justice Louise Charron, and Osgoode’s own Professor Signa Daum Shanks. The next Supreme Court justice must have a nexus to Ontario, be functionally bilingual, and meet a few other criteria related to their experience in the profession. All of this will be in accordance with the Supreme Court Act.
What is not written into the legislation is how the Court’s composition should look like from the perspective of personal identity. From the Court’s inception to the present day, this has always been a matter of discretion for the Prime Minister. In recent decades, the legal and political classes have become better attuned to the need for greater representation in the legal profession, whether it be regarding gender, religious affiliation, or ethnicity. In 1970, Bora Laskin became the first person of Jewish heritage to be appointed to the SCC. In 1982, Bertha Wilson became the first woman to be appointed to the SCC.
Although we celebrate the great strides the Court has taken in the past half century, it is unsettling that, nearly 150 years after its establishment, the nation’s highest legal authority has yet to feature a BIPOC (Black, Indigenous, or Person of Colour) Justice. In the United States, the racial glass ceiling was broken in October 1967, with the appointment of Associate Justice Thurgood Marshall. That was 54 years ago. Now, with the departure of Justice Abella, Prime Minister Justin Trudeau needs to break the racial glass ceiling. It will be the main contention of this article that, as of July 2, 2021, the Supreme Court of Canada should feature its first BIPOC Justice.
Before continuing, it is worth mentioning one additional point. While this article focuses on BIPOC, its core animating principle is that there needs to be greater diversity on the highest bench, whether that be BIPOC or persons with disabilities, the LGBTQ+ community, or religious minorities. The key point to takeaway is that the nation’s highest Court needs to better reflect Canada in 2021. So let us build that argument.
In the two years since Justin Trudeau’s last SCC appointment (Justice Nicholas Kasirer, a Caucasian male) the national consciousness on issues of diversity and inclusion has significantly strengthened. 2020 brought along a national movement – propelled by protests, boycotts, and grassroots activism – aimed at dismantling structures of anti-Black and anti-Indigenous racism. The efforts of Indigenous activists to gain recognition for their land and resource rights in Wetʼsuwetʼen First Nation territory in British Columbia and Mi’kmaq First Nations territory in Nova Scotia, quickly spread throughout the nation. Protests took place from coast to coast, province to province in solidarity with Canada’s Indigenous peoples. The Indigenous activist movements bookended a summer of Black Lives Matter protests in response to the public execution of George Floyd. The issues facing Black Canadians, from police brutality to housing discrimination to income inequality, were all put in the forefront in university lecture halls, corporate boardrooms, and chambers of Parliament. Additionally, anti-Asian violence and discrimination has seen a disturbing rise since the COVID-19 pandemic shuttered schools, businesses, and places of worship in March 2020. Muslim Canadians continue to be the subject of racist, Islamophobic invective in Quebec and rural Canadian counties. Canadians are thinking differently about race, changing the language they use, the behaviors they exhibit, in order to create a more safe, inclusive, and welcoming environment for BIPOC. With this surge in consciousness about racial equality and equity, Justin Trudeau has been provided with an important opportunity to have these new attitudes reflected in Canada’s highest court. Trudeau can put into action his nearly half-decade of rhetoric about diversity and inclusion.
Members of the legal community concur. On September 14th, 2020, the Canadian Bar Association penned a letter to Trudeau and Minister of Justice David Lametti urging the Government to appoint more BIPOC to the federal judiciary and Supreme Court of Canada. The letter points to the Ministry of Justice and Attorney General of Canada’s mandate letter from November 2015 committing to “transparent, merit-based appointments, to help ensure gender parity and that Indigenous Canadians and minority groups are better reflected in positions of leadership.” In practice, however, this promise has not been kept. Between 2016 and 2019, three percent of federal judicial appointees self-identified as Indigenous. There is no disaggregated data on race collected from these appointments, so we do not know how many federal judicial appointees identified as Black. What we do know is only eight per cent identified as visible minorities. The argument for having greater diversity on Canada’s highest court may appear self-evident, but the reasons bear repeating. An all-white or white-majority judiciary, despite all of the anti-bias training, cannot possibly obtain the level of insight and understanding of BIPOC experiences necessary to render a fully informed, racially sensitive decision. Many BIPOC have experienced racism firsthand and can appreciate all of its nuances and complexities. BIPOC can better empathize/sympathize with the struggles facing BIPOC litigants, their concerns, and their needs. On the other end of the spectrum, Canada’s BIPOC community would be willing to invest a lot more trust in judgements on issues uniquely affecting them if they knew that at least one of the justices shared their common experiences.
The effort for greater representation of the BIPOC community in the legal profession and the judiciary needs to start from the bottom up. Systemic barriers need to be lifted to allow more BIPOC to gain admission into law school, move up into leadership roles in Canadian law firms and government legal departments, gain tenure tracks upon the completion of their doctoral studies, and be appointed to the lower courts. When the pool of potential candidates becomes more diverse, so will the selections. The appointment of a more diverse independent advisory board is a good start. Professor Signa Daum Shanks, a Métis woman, will bring a fresh and much needed Indigenous perspective to the selection process. Beyond Daum Shanks, however, none of the advisory board members are from the BIPOC community.
But approaching the problem from the bottom up does not mean we cannot also tackle the issue from the top down. This is a momentous opportunity for Trudeau to do just that. Justice Abella was a pioneer. A trailblazer. She broke the glass ceiling for Jewish women on the SCC. In celebrating her illustrious legal career and service to Canada, Trudeau needs to follow the lead of his predecessor Paul Martin, who first appointed Abella to the highest court in 2004. He needs to look beyond the norm. He has a wide assortment of candidates to choose from. This includes Justice Mahmud Jamal, a former Partner at Osler, Hoskin and Harcourt LLP, who specializes in appellate litigation, public and constitutional law, and administrative law (which he taught at Osgoode Hall Law School).
BIPOC who are navigating the whitened terrain of the legal profession, including myself, are looking for representation. BIPOC are looking to see that their voices are being heard, that their concerns are being fairly judged, and that their identities are being recognized. BIPOC are looking to see that the rhetoric of diversity and inclusion is being put into operation and given substance.
BIPOC want to see the racial glass ceiling shattered.
Justin Trudeau can begin this process, in earnest, by appointing a Black, Indigenous, or Person of Colour to the Supreme Court of Canada.