Focus On

Crampton wants feds to diversify colours of court

Thursday, July 21, 2016 @ 8:00 PM | By Cristin Schmitz

When he became head of the Federal Court, Chief Justice Paul Crampton vowed to work for diversity on a bench where only one of 35 full-time judges came from a minority group.

Since then he has sworn in 22 new members — all of them white — despite the chief justice reaching out over the past four and a half years to senior members of the bar from minority communities.

“The federal government, I think they need a strategy…that’s something that I think that a lot of chiefs [justices] around the country feel,” Chief Justice Crampton told The Lawyers Weekly during an exclusive interview about the national trial court’s priorities.

He said so far as he knows, comparatively few minority jurists apply for the Federal Court. Why is a matter of speculation, especially given the opaque federal judicial appointment process. It could be that many minority jurists did not apply over the past decade because they lacked ties to the ruling party, or at least someone to go to bat for them within government — dimming their prospects for success in a process still rife with partisan politics (the new Liberal government has pledged change on that front).

“I’ve made it quite clear [to Ottawa] that I feel we need to be more reflective of Canadian society, but somebody needs to have a strategy for attracting highly qualified members of the bar who have ethnic backgrounds,” the chief justice stressed. “It can’t just be left to chance anymore.”

Attaining a more representative bench and thus boosting public confidence in the judiciary is part of the chief justice’s overarching goal to build the Federal Court into “a stronger national institution.”

The Liberals say they share the chief justice’s concern about the dearth of diversity on the superior courts, stating they want to ensure that “Canada’s judiciary truly reflects the face of Canada.” (Of the 15 judges the government has appointed so far, 10 are women, one is Ojibway, and one is Chinese-Canadian. “We know that our country is stronger, and our judicial system more effective, when our judges reflect Canada’s diversity,” Justice Minister Jody Wilson-Raybould said as she recently pledged to consult with the judiciary, the legal community and the public to create a judicial appointments process, guided by the principles of “openness, transparency and merit.”

Chief Justice Crampton said any reform should include the creation of a dedicated judicial advisory committee (JAC) to vet applicants for the Federal Court, similar to the specialized JAC for the Tax Court.

Right now applicants for the Federal Court and Federal Court of Appeal are vetted by the 16 JACs who screen applicants for the superior courts in each province and territory.

This has led to some applicants being “recommended” for appointment by the JACs, who had little experience in the court’s areas of core jurisdiction, such as administrative law, intellectual property or immigration law, he said. “From time to time, we’ve seen some of the JACs approving people for our court, even though they had nothing in their application that commended them to our court, while at the same time not approving them for their local superior court,” he explained. “Nobody in this court is currently in the room when these decisions are being made and so I just feel if we’re going to strengthen us as a national institution the appointments process is the first place to start.” He said the cost would be “minimal.”

He speculated some applicants were deemed qualified for the Federal Court because the court is not well understood by the existing JACs. “So we need to have our own JAC, populated with people who understand our needs, as the Tax Court does.”

He noted it is not obvious, for example, why applicants for the Federal Court (which doesn’t have criminal jurisdiction) should be vetted by police officers — who currently hold one position on the eight-member provincial and territorial JACs. “It would be perfectly legitimate for us to have a representative of the Aboriginal bar, the IP bar, the admin law bar…[and] a member of our court chairing that, so that we could sensitize the other members of the JAC to our needs,” the chief justice suggested. Moreover, the court knows leading members of the bar in its areas of core jurisdiction so “we could share our knowledge of these candidates with the other members of the JAC, and obviously [the committee could] make a better and more informed decision.”

Chief Justice Crampton said a continuing major obstacle to attracting leading practitioners from the big cities other than Ottawa and Gatineau, Que., continues to be the statutory requirement that the Federal Court’s judges — who travel across Canada two weeks of the month — live within 40 kilometres of the national capital region.

He said senior practitioners in Vancouver, Toronto and Montreal — where the itinerant court does most of its work — have told him they would otherwise consider applying for the court, but cannot uproot their spouses (with their own careers), and their teenage children, to move to Ottawa.

The chief justice plans to ask the new government — as he did its predecessor — to drop the residency requirement, which he believes is outdated and unnecessary, given that people can now efficiently work, communicate and interact remotely. The most important thing, he said, is that judges are actively involved in the life of the court, including its many committees and outreach efforts.

The issue is a live one since 13 full-time members of the court are going to be eligible for retirement or supernumerary status in the next three years, he noted, citing the example of IP expert Justice Roger Hughes, who works mostly in Toronto, but is obliged to keep an Ottawa residence. “We need to be attracting the next generation of Roger Hugheses, and so the residency requirement is going to be a key barrier going forward for us,” the chief justice said.

Strengthening the court as a national institution also involves raising its profile and making its work better understood, both within the bar and the general public, he said. To that end the court is “optimistic” that the new government will act on plans, shelved by the Conservatives, to build shared headquarters in Ottawa for the Federal Court and Federal Court of Appeal, the Tax Court and the Court Martial Appeal Court. The Federal Court, which rents spaces in commercial office buildings across Canada, is also exploring with courts in other major centres that are looking at constructing new court buildings the possibility of sharing space and costs. “We’d like to be closer to the judicial precincts across the country,” the chief justice said. “Right now it’s out of sight, out of mind — but we’d be in sight and in mind, if we were where the legal community tends to be.”

The Federal Court continues to actively reach out to the profession, including via liaison committees with IP, administrative, Aboriginal, maritime, and immigration law practitioners, and with various barreaus in Quebec. Its judges participate in many moot courts and speak at conferences. One judge is twinned with each law school across Canada, including organizing the hearing of live court proceedings on campus, and different judges present courses on administrative law, immigration and refugee law, IP, competition law, Aboriginal law and civil procedure. “We are actually spending a lot more time with the law schools, that’s a big part of our outreach,” the chief justice said.