Why judicial independence must include diversity

In a few weeks, the Canadian Judicial Council will release its decision in the inquiry into the behaviour of Justice Robin Camp, who asked the alleged victim in a sexual assault case why she couldn't "keep your legs together."

But Camp is not the only Alberta judge to have their decisions and behaviour in sexual assault trials questioned. Three other Alberta judges, all male, have recently been rebuked or had their decisions in sexual assault cases overturned.

To Sonia Lawrence, Professor of Law and Director of the Institute for Feminist Legal Studies at Osgoode Hall Law School, the cases raise questions about whether Canada's judiciary is appropriately representative of the population.

For Lawrence, judicial diversity is not simply an issue of representation, but one of judicial independence, an important democratic concept. 

"There are two different ways to think about judicial independence," Lawrence says, "we can think about the independence of individual judges and often that revolves around questions about conflict of interest and financial interests. But the concept that I'm interested in is the idea of structural impartiality. It looks at the judiciary in the aggregate, and it considers whether the judiciary is really independent and able to make impartial decisions and to consider the law without being directed one way or the other." 

While statistics are available for the gender of sitting judges, there are no official stats on the ethnicity of the judiciary. About 36% of federally appointed judges are women. Lawrence says some studies have tried to judge the ethnic diversity of the judiciary, and find an appointment rate of about .5% for visible minorities between 2009 and 2014.

So if our judiciary is mostly male and mostly white, it may not be independent of a white, male view of the world. To Lawrence, if people believe that life experience shapes a person's world-view, then it follows that the life experience of a judge affects their judging. 

Once you get different groups of people with different experiences and different ideas and different approaches to problems on the bench, everything changes about the process of judging.- Sonia Lawrence, Osgoode Hall Law School

The solution to a homogenous, mostly white male bench, according to Lawrence, is to reconsider our definition of the term "merit" when lawyers apply to be judges.

Lawrence feels that term is misapplied, saying "we have lots of different ways of describing what an excellent application might look like. So, we can imagine you have to go to particular schools, you have to be held in particularly high regard by your colleagues, you might need to have a great record of wins as a lawyer, you might need to have done lots of community service; whatever those things are. But we haven't actually done the work to connect those to excellent performance as a judge. The measure of merit that we have traditionally used that have produced this very homogenous bench, are not actually connected to our ideas of what good judges look like."

To Lawrence, we might consider a person's experience as a visible minority, or person with a disability, or any underrepresented demographic, as part of "merit." 

What I want to say, and these four most recent controversies help, is, look I'm just waiting for the day when mediocre women of colour can get appointed as easily as mediocre white men.-Sonia Lawrence, Osgood Hall Law School