Jamie Sarkonak: Liberal diversity mandates must end if we’re to solve the judge shortage

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This tends to involve standard-bending because the pool of bench-eligible senior lawyers is going to be more white and more male than the country as a whole. The senior tiers of any profession reflect the demographics of students in professional schools 40 years ago, not today. While excellent candidates can be found from all walks of life, the Liberal focus on diversity necessarily comes at the expense of excellence. And because the Liberals are obsessed with maintaining an acceptable ratio of white male to “diverse” appointees, we can infer that they’d rather leave some seats empty until a correct number of diverse judges can be put forward at the same time. Shortages ensue.

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Would-be judges must now fill out a questionnaire designed to fish for allegiance-signalling keywords during their application. For example: “Given the goal of ensuring that Canadians are able to look at the justices appointed to the bench and see their faces and life experience reflected there, you may, if you choose, provide information about yourself that you feel would assist in this objective.”

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Alberta Chief Justice Ritu Khullar, who was herself a diverse candidate, could push back on this with “my parents raised us to be ‘Canadian; full stop’. That is how I view myself.” It would be interesting to see how many non-diverse applicants were rejected for responding like this. We won’t know, because only successful candidates have their answers published.

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This process is what raised Ontario’s Justice Shaun Nakatsuru, diverse by federal standards, to the province’s superior court in 2017 after writing “simple, empathetic, and accessible” rulings as a provincial judge. He was praised by CBC for mercifully sentencing a chronic Indigenous offender named Jesse Armitage to house arrest for theft in 2015, and then ordering treatment for him after he committed another crime. In 2016, that man, then 31, attacked two Toronto bus drivers and a police officer; in 2019, a “Jesse Gerold Armitage,” aged 34, was wanted by Toronto Police for breaking and entering. Evidently, the judge was not promoted for his good judgment.

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More of the same is going to dig Canada even further into a hole. Not only are these superior court appointees deciding how the law works in each province, they’re also part of the growing pool of candidates for future roles of greater prestige: the Supreme Court of Canada, international courts, advisory roles in high government, emergency commissions, etc.

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But that can be hindered. Provinces can pressure the feds to streamline the judicial process (read: remove the diversity show-and-tell essays) to ensure faster vetting. They can complain, loudly, about how odious it is that police representatives aren’t on advisory boards. They can challenge Liberal obsessions with appearances. They can demand a return to competency over everything.

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Results-wise, we can expect the Liberals to either ignore these asks and appoint the same old calibre of jurist they’re known for, or, perhaps, as a show of good faith by new leadership, they get rid of the diversity encumbrances. Provinces that don’t get what they want can publicly make a stink about the process, blaming the Liberals’ demographic preoccupations for stalling the wheels of justice. The provinces have nothing to lose here.

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National Post

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