Illustration of scales of justice against backdrop of diverse, multi-coloured faces

If Canada Is Diverse, Why Isn’t Its Highest Court?

  • May 31, 2022
  • Mariam Moktar

Canada. One of the most culturally and ethnically diverse countries in the world. A place that has formally endorsed multiculturalism and where diversity isn’t just accepted but celebrated.

Yet that diversity isn’t reflected in our highest court. Until last year, with the appointment of Justice Mahmud Jamal, every judge that has been appointed to the Supreme Court of Canada has been white.  

While Canada has ensured regional diversity on the Court, that is not the only diversity that matters. The Court, which has the final word on many issues affecting Canadians from all walks of life, should mirror the diversity of this country. Why? Because we know that a diverse bench only enhances the public’s confidence in our legal system, and diversity enhances the quality of decision-making on the bench.

In its 147 years, the Supreme Court has not had an Indigenous or a Black justice. And it is time that it does. Like the United States of America, slavery and racial segregation existed in Canada and slave-owners held both Indigenous and Black people as property. This is a part of our history that is often ignored or simply not taught in schools. Canada’s legacy of racism unfortunately continues to the present day. Systemic racism is woven into the fabric of our society and underpins our institutions. Indigenous and Black people continue to be disproportionately represented in the criminal justice and the child welfare systems. They are also more likely to be subjected to police violence. Yet these historically marginalized groups have no representation at our highest Court.

In fact, Canada’s historically all-white bench has struggled to deal with the issue of race. In 1997, the Supreme Court in RDS v. The Queen considered racial bias in judicial decision-making in relation to Justice Corrine Sparks, Canada’s first female Black judge. Justice Sparks acquitted a 15-year-old Black youth who was charged with assaulting a police officer. In her oral judgment, Justice Sparks tapped into her lived experience and stated, “I am not saying that the Constable has misled the court, although police officers have been known to do that in the past. I am not saying that the officer overreacted, but certainly police officers do overreact, particularly when they are dealing with non-white groups.” The Crown challenged these comments as raising a reasonable apprehension of bias.

Although six of the nine Supreme Court justices upheld Justice Sparks’ acquittal decision, two of the justices in the majority stated that her comments “came very close to the line” and many of the justices were critical of her reflections on systemic racism in policing. Recently, Professor Constance Backhouse carefully considered this case in her article, “Turning the Tables on RDS: Racially Revealing Questions Asked by White Judges,” and concluded that the informal comments of the Supreme Court justices during the hearing “exemplified many of the patterns that anti-racist educators describe as indicative of a lack of understanding of racism.”

As it turns out, Justice Sparks was right. The Supreme Court has since acknowledged systemic racism in Canada, and recently addressed racial profiling by police in R. v. Le and R. v. Ahmad. Progress on these issues, however, would likely not have taken as long if we had a representative bench. 

But this call for diversity goes further. We need more than judges who just look different. As noted in Justice Shirzad Ahmed’s recent keynote address on racial diversity on the bench, we also need a bench that is diverse in substance. We need judges who will be empowered to bring their unique perspectives as well as their lived and community experiences to the table.

Early in my career, I had the privilege of clerking at the Superior Court of Justice in the Central West Region. Although I was often mistaken for the accused party’s girlfriend or relative in criminal matters by court staff, I was grateful to work for judges who looked like me and with similar lived experience. Because of that clerkship, for the first time in my life, I not only saw myself reflected in the bench, but could also see myself as a judge one day. Representation truly matters.

In 2016, Prime Minister Trudeau reformed the judicial appointments system to increase transparency and to recruit a more diverse group of candidates. With Justice Michael Moldaver’s upcoming retirement, Mr. Trudeau should make history by appointing an Indigenous or a Black justice to the Supreme Court. For systemic change to be realized, we need a critical mass of diverse voices at all decision-making tables.

Photo of author Mariam MoktarAbout the Author

Mariam Moktar is a civil litigator at Paliare Roland Rosenberg Rothstein LLP. She is the chair of the OBA Investment Committee and the vice-chair of the OBA Equality Committee. Mariam is also a member of the CBA Equality Liaison Group, the Roundtable of Legal Diversity Associations (RODA), and the Canadian Muslim Lawyers Association’s Legal Advocacy Committee.