Upon U.S. Supreme Court Justice Ruth Bader Ginsburg’s passing, her legacy as a staunch Democrat and advocate for diverse representation in law has been framed by Canadians as a critique of America’s divisiveness.
While I would argue that it’s fair to criticize the extreme politicization of the U.S. Supreme Court—where a single justice’s death and their subsequent replacement can completely alter its national legal system—we shouldn’t make the mistake of overlooking the systemic issues facing the Supreme Court of Canada, as well.
Arguably the most prominent member of the court’s liberal wing, Ginsburg’s passing was an earth-shaking event. As a passionate advocate and defender of critical leftist issues such as women’s, civil, and LGBTQ+ rights—as well as being the first woman and sixth Jewish justice—it comes as no surprise her death has exacerbated the polarized political climate in the United States.
As Americans of every walk of the political spectrum share their views on Ginsburg’s death, Canadians too have been quick to share their two cents on U.S. politics. We critique the influence of money on the American electoral process, the life-or-death nature of their judicial appointments, and how divided they are on almost every issue.
This helped in part by the fact that Canadians are well-informed about notable American events, such as Ginsburg’s death and Brett Kavanagh’s confirmation hearings—all of which help foster the assumption among Canadians that we are superior, since our judicial system is seemingly nowhere near as overt or politicized as the Americans’.
However, the mere fact that our legal system is less politicized than its American equivalent does not mean it is not in need of systemic improvements. For a country that claims to espouse multiculturalism and diversity, the fact that there has never been a single BIPOC justice in the Canadian Supreme Court’s 145-year history is an utter failure of a political system responsible for the court’s administration.
Moreover, a Dalhousie University report commissioned in 2016 found that in the lower courts, only 72 judges—0.006 per cent of the total judiciary—identified as BIPOC.
While the appointment of Canadian judges may be less politicized as a result of our selection processes—such as the fact that judges are simply appointed by the politically-neutral governor general on the advice of the prime minister—the lack of diversity among Canadian judges is deeply concerning.
Ever since the adoption of the Charter of Rights and Freedoms in 1982, Canada’s courts have been much more involved in decisions relating to policy. On fundamental issues such as abortion, the legality of a possible Quebec secession and Indigenous rights, the judiciary has had an equal—if not greater—influence in shaping the political outcome of these issues alongside our elected Parliament.
The court plays an enormous role in the day-to-day lives of Canadians, and faces many important questions in the upcoming years. It is critical for them to reflect the demographics of the country they represent in order to right historic wrongs, such as achieving Indigenous reconciliation, abolishing systemic racism and preventing crimes against the gay community.
Having a diverse bench is not only the morally correct outcome to strive for, but it’s also the most rational one: numerous studies have proven diverse groups in all workplaces are more effective, produce better results and cover more grounds of an issue than racially homogenous ones. This is a category which our Supreme Court, being entirely composed of white judges, currently falls into.
Racially homogeneous decision-making groups are especially problematic within the legal system, where judges have vast discretionary powers in deciding outcomes that affect the over-represented BIPOC population that makes up our criminal justice system.
If we are serious about building a truly just society, one of the first and basic things we have to do is push our elected representatives to diversify our courts. The troublesome set of events that surround the U.S. Supreme Court should not be used as an excuse to make us complacent about the state of the Canadian judiciary.
Featured image by Spencer Colby.
