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Big gaps in judicial selection process | Alexander Gay

Friday, July 05, 2019 @ 8:49 AM | By Alexander Gay

Alexander Gay %>
Alexander Gay
There is concern in society with the diversity of representation on the judiciary, and rightfully so. The composition of the judiciary must be reflective of society if it is to dispense justice in a manner that responds to society. A judiciary that is not representative is a judiciary that loses legitimacy. In reaching these goals, Ontario’s Judicial Appointments Advisory Committee (JAAC), the body that supports the provincial government in the appointment of judges, has adopted a number of nomenclatures to assess the progress that it has made in promoting diversity.

However, what is often ignored is that what lies behind each of these nomenclatures are policy choices that have an impact on the manner in which we perceive diversity and the manner in which the appointment process is managed.

The nomenclatures used by the JAAC include “Women,” “LGBTQ2,” “Indigenous,” “Persons with Disabilities,” “Visible Minorities,” “Francophone” and “Ethnic Group.” These are all important nomenclatures. Every jurisdiction in Canada uses its own set of nomenclatures and not all are the same. These nomenclatures are used by government to develop questionnaires where a candidate for a judicial appointment will often be asked to self-identify along these nomenclatures. In some cases, a candidate will have qualities that will allow him or her to identify under different nomenclatures. In other cases, they will be limited in the choices and will be asked to choose between, for example, “Visible Minority” and “Ethnic/Cultural Group.”

The nomenclatures used by the JAAC are also not universally accepted across the different common law jurisdictions, all of which report on diversity. Different jurisdictions use different nomenclatures, which is reflective of policy choices. The United Kingdom, for example, has opted for a narrower set of nomenclatures, which include only “Male” Female” and “BAME” (black, Asian and minority ethnic). No distinction is made between the various groups that make up BAME. The United States uses the nomenclatures of “Black,” “Hispanic,” “Asian” “White” and “Other.”

The problem is that the nomenclatures can give rise to distortions. For example, until very recently, when Hispanics were asked to self-identify in the U.S. Census form, they more often than not declared themselves to be a racial group and not an ethnic group. For decades, the U.S. Census Bureau was misreporting the number of Hispanics in the United States, due entirely to the design flaw of the questionnaires which did not take into account the manner in which the community perceived itself.

At the heart of the problem is that ethnicity and race are complicated concepts that are difficult to capture in a one-word nomenclatures. Race, for example, is comprised of various forms of social differentiation, including nationality, ethnic origin and ancestry. The nomenclatures used by governments to assess diversity, which are fashioned around race and ethnicity, do a poor job of capturing these concepts. As it relates to Hispanics, for example, they can be Indigenous, black or white. In many cases, the nomenclatures in the questionnaires force applicants to choose between “Visible Minority” or “Ethnic/Cultural Group.”

However, depending on the Hispanic, they may fall under either or both. The net effect is that the Hispanic community is accounted for under different nomenclatures.

What underlies the objective of diversity is creating a judiciary with different values and experiences. These differences interact with the law and allow judicial decisions to be made that are responsive to society. While the nomenclatures allow us to assess progress in achieving diversity and are not to be discarded, they must be seen as crude tools that may exclude segments of society. There are limitations to how nomenclatures can be used and we must be mindful of these limitations if we are to achieve our collective objective.

Alexander Gay is a senior counsel at the Department of Justice. He maintains a broad civil litigation practice, with an emphasis on commercial and trade disputes. He is a part-time professor at the University of Ottawa Faculty of Law.
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