Diversity versus Merit: A Questionable Juxtaposition

  • 14 avril 2020
  • Anna S. P. Wong, Member-At-Large

Over a century ago, without knowing it, legendary jurist Oliver Wendell Holmes made the case for judicial diversity in ten words: "the life of the law is not logic, but experience." Bursting from these words is a truth we have known all along. Legal issues often pose uneasy choices. In choosing whose stories to believe and which principles to prioritize, judges draw not only on legal precedents, but also personal experiences, values and beliefs. Try as they may, judges cannot shed their experiences and values at the courtroom door. And explicitly or implicitly, we have come to accept that judges’ personal experiences matter. It explains why upon the announcement of an appointee to fill a high-profile judicial vacancy, the media invariably abound with reports on the appointee’s personal background, and based on that, predictions are made as to how he or she might decide cases. 

Despite successive governments of different stripes avowing change over the years, the numbers tell what is by now a tired tale: the judiciary is not quite reflective of the community that it serves. Of the 278 judges of the Ontario Superior Court of Justice, 39 per cent are women. [1] Visible minorities and Indigenous persons occupy a paltrier number of seats at all levels save for the Supreme Court of Canada, where they have no representation whatsoever. 

While few today would outright oppose a more representative judiciary, progress towards it comes up against a stumbling block: the juxtaposition of diversity against merit. It would be better to have more diverse judges, it is said, but what is most important is that the best, most capable people are appointed.[2]

However incontestable the proposition may seem at first blush, it belies the merit in diversity, and assumes that judges are solitary, neutral ciphers.