In the past five and a half years, the federal government has appointed just three non-white judges, out of nearly 200 first-time judges named to the bench, despite growing numbers of lawyers who are members of racial minorities.

Two years ago, The Globe and Mail first revealed that the Conservative government is choosing almost no visible minorities as new judges. Since that time, groups such as the Canadian Bar Association, representing the country’s lawyers and judges, have urged the government to pay more attention to diversity, and to record the number of minority candidates and make the information public. And Chief Justice Beverley McLachlin of the Supreme Court has spoken out about the importance of having a more racially diverse bench.

“Many people, particularly women and visible minorities, may have less than complete trust in a system composed exclusively or predominantly of middle-aged white men in pinstriped trousers,” she told a conference in Scotland in June, 2012.

Census data from 2006 showed that 11.5 per cent of Ontario lawyers and 14.6 per cent of B.C. lawyers were visible minorities. More recently, a 2010 survey found 17 per cent of lawyers who responded in Ontario were visible minorities.

When B.C. kept track of visible-minority candidates for provincial appointments to the bench, it found that 27 per cent of candidates between 2004 and 2006 fit that category.

But the pattern of nearly all-white appointments persists, a new study by University of Ottawa law professor Rosemary Cairns Way has found.

“I think there’s a silence now, and no change, in a context when everything else about the legal system is changing, and everything else about the social context judges are dealing with is changing,” she said in an interview.

The continuing pattern of white-only appointments raises questions about discrimination, and whether the courts could become diminished in the eyes of Canadians if they do not reflect the population. Roughly 20 per cent of Canadians are visible minorities.

“It makes the courts seem to be more disconnected from the reality of society,” Emmett Macfarlane, who teaches political science at the University of Waterloo, said, adding that at the very least “systemic discrimination” is at play.

Paloma Aguilar, a spokeswoman for Justice Minister Peter MacKay, said in an e-mail that the government is “guided foremost by the principles of merit and legal excellence in the appointment of judges and Canada has many candidates that meet these criteria.” The e-mail made no mention of diversity.

Prof. Cairns Way looked at the past 94 appointments, made between April, 2012, and March 7, 2014. In a paper she is presenting on Friday at a conference at York University’s Osgoode Hall Law School in Toronto, she reported that just one non-white judge, a South Asian woman in British Columbia, was chosen by the federal justice minister.

Her study, like The Globe’s, focused on new judges only, not those picked from lower courts to sit on higher ones. The federal government did, for instance, name the first Filipino-Canadian member of a superior court last summer – Justice Steve Coroza, of the Ontario Superior Court, who had been a judge on the Ontario Court of Justice.

Prof. Cairns Way’s study followed one done by The Globe between 2008 and April, 2012, which found just two of 100 new judges were non-white – each a Métis chosen in British Columbia and Nova Scotia. Both studies used Internet searches and information from judicial sources and the law firms where the judges had worked to compile their data on race. In 12 cases of the 94, Prof. Cairns Way did not know the race of the new judge.

The Office of the Commissioner for Federal Judicial Affairs tracks the appointment of women but not of other minorities. Women make up a third of the 1,111 federal judges who sit on provincial superior courts, the Federal Court of Canada’s trial and appeal divisions, the Tax Court of Canada and the Supreme Court. Prof. Cairns Way found that 37 of the past 94 appointments were of women. (In 12 appointments, she was unable to determine whether the judge was a member of a racial minority.)

There are 17 screening committees across Canada that screen judicial applicants for the federal government; each committee includes members of the legal community and a police officer, and mark candidates qualified or not qualified. A third category, highly qualified, was abolished under the Conservatives. The ultimate choice is made by the Conservative government.

Andrew Alleyne, the past president of the Canadian Association of Black Lawyers, said he could not say visible-minority candidates are discriminated against “without having any evidence.” But, he said, until the government accepts the importance of a diverse judiciary, “I don’t anticipate much in the way of change.”

Prof. Cairns Way said she believes there are many qualified lawyers from visible minorities.

“It’s not just lunatic legal academics who are writing about this,” she said. “It’s the chief justice [Beverley McLachlin of the Supreme Court] – she’s speaking about it. It’s the CBA. It’s law societies. Demographics are changing with no response. I think that’s what’s astonishing.”

The Globe and Mail
Published Thursday, Apr. 10 2014, 6:00 AM EDT
Last updated Thursday, Apr. 10 2014, 6:50 AM EDT