Supreme Court's chief justice calls for more diversity in Canada's legal system

The Supreme Court's chief justice is calling for more diversity in Canada's legal system as protests mount around the world over anti-Black and anti-Indigenous racism.

During an end-of-session news conference in Ottawa today, Richard Wagner said the top court has wrestled with cases that have underscored racial bias and the use of degrading stereotypes — and that a lack of diversity in the justice system is part of the problem.

"All Canadians should be able to see themselves reflected in their justice system. Justice should not make a person feel like an outsider or an 'other' when they confront it," he said.

"I also think there is a growing awareness of the need for our courts, including our highest court, to reflect the diversity of Canadians. I certainly would welcome the insights and perspectives this could bring."

Canada's judiciary has become more diverse, with more women, visible minorities, LBGT and Indigenous people on the bench, but the number of Indigenous judges remains low compared to other demographic groups.

No Indigenous justice has ever been appointed to the Supreme Court of Canada.

The Liberal government overhauled the judicial appointments system in October 2016 in an attempt to recruit a more diverse array of candidates and make the selection process more transparent.

Cases show discrimination, bias

Wagner today cited some recent cases the Supreme Court has dealt with involving racism, including the case of Jeffrey Ewert, a Métis inmate who was convicted of the murder and attempted murder of two young women. The top court ruled that Canada's prison service was using security tests that discriminate against Indigenous offenders and keep them behind bars longer and in more restrictive environments.

Wagner also cited the case of Ontario trucker Bradley Barton, which unleashed public outrage over how Indigenous victim Cindy Gladue was treated by Canada's criminal justice system. During the trial, Gladue was described repeatedly as "native" and a "prostitute."

Justice Michael Moldaver, who wrote for the majority in that case, said judges must do more to fight stereotypes against Indigenous victims of violence.

"As an additional safeguard going forward, in sexual assault cases where the complainant is an Indigenous woman or girl, trial judges would be well advised to provide an express instruction aimed at countering prejudice against Indigenous women and girls," he wrote.

No call on systemic racism

Asked today if there is systemic racism in Canada's justice system, Wagner declined to make a definitive statement. He said it's the job of judges to weigh the facts in individual cases and speak through their judgments, while it's up to elected officials and others to make more broad statements.

"As judges, we decide where evidence is brought forward," he said. "We don't issue broad statements generally without having a case to be decided upon."

Lori Thomas, president of the Canadian Association of Black Lawyers, said she was disappointed by Wagner's comments on systemic racism.

"The resistance to acknowledge systemic racism means that it will continue to be pervasive within the justice system," she said.

"The fact that the perception by the community is that Black and Indigenous people are underserved or may not be given full justice in the justice system gives to mind that there is obviously a concern of systemic racism, and I can say that includes those acting in the legal community."

Thomas said there is implicit bias within the justice system, especially given the small number of Black and Indigenous judges.

Even though Wagner said judges receive training to recognize and respond to bias and systemic discrimination, Thomas said that does not make up for a lack of diversity on the bench.

Indigenous people have long been over-represented in Canada's courts and correctional system.

In his first news conference after being appointed as chief justice two years ago, Wagner called the incarceration rate of Indigenous people "unacceptable."

"The rate is too high. It reveals a serious problem. And so far as the judiciary is concerned, I think that the court has a role to play whenever the case is presented to the court to decide those issues," Wagner said at the time.