Racial Diversity on the Bench

Keynote Address at the National Spring 2021 Conference of the Canadian Association of Refugee Lawyers (CARL)

The Honourable Shirzad Ahmed, April 29, 2021.

I am honoured to give the keynote speech for the Canadian Association of Refugee Lawyers’ spring conference. Before addressing the topic of today’s speech, the issue of racial diversity on the bench, I must emphasize that I speak from my own experience and perspective, and not on behalf of the Federal Court, where, as some of you may know, I currently sit as a judge.

In preparing for this speech, I was asked whether I believe diversity on the bench is an important issue, particularly in a Court such as mine, where the majority of applicants who come before the Court are racialized individuals navigating Canada’s immigration system — a mechanism in which one’s race and nationality, among other identities, may implicate one’s ability to enter and remain in this country.

My answer, which should come to little surprise, is, of course: I am a firm believer that diversity on the bench is important, including at the Federal Court. This notion is now commonplace, thanks in part to the work of organizations such as CARL, who have urged the Attorney General of Canada to appoint judges to the Federal Courts who are Black, Indigenous, and/or people of colour — or “BIPOC” for short.

The need for diversity on the bench is also recognized institutionally throughout the legal system, including by the Federal Court in its 2020-2025 Strategic Plan, as well as in the statements of Chief Justice Wagner of the Supreme Court, Prime Minister Justin Trudeau, and the Department of Justice. What change should come from these statements is yet to be seen, but an awareness and acknowledgement of the problem is certainly the first step. However, it remains just that – a first step.

Unfortunately, our words often outpace our actions. Canada’s first female lawyer was called to the bar in the 1880s; its first female Supreme Court Justice was appointed in the 1980s. Racialized lawyers began entering the bar in significant numbers after the Second World War; we should not have to wait until the middle of the 21st century for the first racialized Supreme Court Justice.

Qualified, racialized applicants to the bench exist; the notion that they have not applied or do not have the experience to sit on the bench is a tired excuse. At the superior court level, we have slowly begun to see a shift. For instance, between October 2019 – October 2020, twelve of the thirteen BIPOC applicants to the bench who were “highly recommended” by Judicial Advisory Committees were appointed. This number is an increase from the year prior, where only six of thirteen of such applicants were appointed. Nonetheless, BIPOC judges remain underrepresented – if not wholly absent – in positions of leadership on the bench; to my knowledge, not a single chief justice of an appellate court in Canada identifies as racialized or Indigenous.

In relation to my own experiences, people often assume I am happy to be the first “refugee judge” at the Federal Court, one of the few mile markers to come from the many words spoken about diversity. Although well intentioned, they are not entirely correct. While I am deeply grateful for my position as a Justice of the Federal Court, there are several reasons why I am not happy to be the first “refugee judge”. Please allow me the indulgence to tell you why.

The concept of a “refugee” was brought into legal existence in 1951, with the signing of the Convention Relating to the Status of Refugees. Before that point, what we now call refugees still sought protection in this country: freed African American slaves, Jewish people escaping the precipitation of the Holocaust. I was appointed to the Federal Court in 2017. I am not happy to be the first refugee judge because I should not be the first. I would be much happier to be the tenth, the twentieth, or some other distant number where no one even bothers to count anymore. In this sense, my appointment is less a celebration than a cold fact, one which shines brightly on the deep-seated systemic barriers that permeate this country.

So yes, to make a short story long, like the majority of the legal profession and its respective institutions, I believe that Canada needs courts that are more reflective of our society’s diversity. These are urgent calls of action that require us to implement change and end our habits of hand-wringing and scapegoating.

That said, I believe there is a caveat to this conclusion, one that is not sufficiently discussed in the discourse of diversity. This caveat, which shall be the focus of my speech today, is the need for a diversity on the bench that is substantive, as opposed to formal.

“Substantive” is a term commonly used when discussing diversity and equality, but what does it mean to have a judiciary that is diverse in substance? In my view, it entails a judiciary that not only reflects the scope of people living in or immigrating to this country, but a judiciary that is receptive and attuned to the experiences of those people. In other words, substantive diversity produces thought and action; it transcends mere appearance and gesture. A bench that is diverse in substance, therefore, is not only representative of Canada’s diversity, but is also empowered to render decisions informed by that diversity. While I agree that the former is a pre-requisite to the latter, it is not a complete answer.

In particular, I am skeptical of the notion that a more diverse judiciary will necessarily and automatically deliver judicial reasoning that is more receptive to and reflective of the experiences of racialized applicants who are navigating Canada’s immigration system. In my view, increased diversity in how we look – through bean counting and statistics, will not automatically bring change. Diversity in judicial decision-making also requires a diversity in thinking about the law, its interpretation, and most fundamentally, the meaning of justice itself. Judges coming to the bench who simply look different, but do not bring their lived and community experiences to the process of deliberation, are hardly likely to offer any meaningful differences to the inequities that currently exist in the judicial system. This act of deliberation is particularly important in the field of immigration and refugee law, where litigants face inequities that are similar to, if not the same as, the inequities faced by racialized lawyers and judges themselves.

The ability to share, empathize, and understand such inequities is, in my view, a central reason why diversity on the bench is imperative. However, if we do not act upon these mutual experiences in our roles as legal professionals, our presence will do little to change the issues racialized litigants currently face. In other words, “diversity” is a necessary, but not sufficient, precondition for more equity in the law.

Nor is the inverse necessarily true. A judge does not need to be a member of an equity-seeking group to deliver judgments that respond to the needs of marginalized individuals. There are judges of many courts who, despite not belonging to such equity-seeking groups, have sought to advance the cause of justice on behalf of those groups through independent, compassionate legal reasoning. They have sought to understand the lived realities that have brought these individuals into the courtroom. They live not in fear of being overturned on appeal, but rather are motivated to interpret and apply the law in a manner that delivers justice while respecting the rule of law.  In some cases, innovations from jurisprudence illustrate how we might address this admittedly challenging task; consider, for example, the role that Gladue reports have played in sharpening judicial attention on the racism that Indigenous people face due to the ongoing legacy of colonialism.

Furthermore, it cannot be the task of only racialized judges to highlight the inequities faced by racialized individuals. Wider support is not only necessary for an even distribution of labour and care, but it symbolizes a greater systemic shift in the legal system, one that is likely to be stronger and more sustainable. To paraphrase the words of the late Justice Bertha Wilson: a diverse judiciary will be a Pyrrhic victory for racialized individuals and for the justice system as a whole if changes in the law come only through the efforts of racialized lawyers and judges. In my personal view, substantive diversity entails not only the inclusion of equity-seeking groups upon the bench, but also the efforts on behalf of the majority to include those groups.

So how do we achieve a judiciary that is diverse in substance, and not merely in form? As judges, we are bound to follow the law in our decisions. That structure will not change no matter the degree of diversity attained, and nor should it.  Within the narrow parameters of our role, however, exists space for ingenuity and empathy, where judges can interpret and apply the law in light of the lived experiences of those who appear before them. This is a seemingly small but significant and potent ability, for it is within these confines that judges can recognize the plethora of human difference that interacts with the legal system. It is precisely through recognition — by seeing difference, understanding it, and acting upon it — that substantive diversity on the bench is actualized, as this process affects not just how we look, but how we reason.

Recognition, however, is not a unilateral act; recognition is dialectic, a two-way street. While it is important for the judiciary to recognize the individuals impacted by its decisions, it is equally important for those individuals to recognize themselves in the judiciary. Society’s trust in the Court, as the institution tasked with adjudicating the exercise of state power over their rights, is strengthened when society recognizes the Court as reflecting and understanding who they are, where they have come from, and what they have experienced. Even if an applicant disagrees with the outcome of a decision, they should be able to see themselves in that decision and its authors, and know that their story was heard, that they were recognized.

In short, substantive diversity requires action, on behalf of racialized judges and on behalf of the judicial system at large. A diversity that does not change the way we act is like a mask: it may appear different at first-glance, but it will not take long before the sensible among us realize it is a flimsy change in appearance, which does little to alter how the entity behind it operates.

Some may be wary that I, a judge, have chosen to participate in the discussion of diversity on the bench by making a call to action. Some may be concerned about judges playing such a role, warning that we should stay in our proper place and avoid giving speeches, interviews, and otherwise engaging in public debate about these topics — perhaps a bit as I am doing now. According to some, judges must keep their opinions on such matters private, out of the public square.

I share a different point of view, for two reasons. First, this view suggests that legal positivism is the only philosophy that has any place in judicial deliberation.  Like it or not, other judicial philosophies exist, and no one has a monopoly on what is “right” or “wrong” in this regard. Second, this view reinforces the legal fiction that judges are automatons who simply apply the law in a scientific, sterile fashion. This critique should not be taken to suggest that I am advocating that we discard the importance of judges exercising objectivity and impartiality when hearing cases. However, true purity in this realm is, at most, a goal to strive for but not yet achieved.

We thus cannot be reticent about the ways in which our identities inform our decision-making. We judges are human beings just like everyone else: when cut, we bleed red, and we have thoughts, opinions, divergent philosophies and yes, frailties. Like all persons, we are products of our experiences.

As the bench begins to diversify, we as judges must remember the experiences that have shaped us and not leave them behind, relegating them to the fictional sphere of the “personal” to be forgotten. Rather, it is imperative that we use these experiences and our personhood to inform our decisions, to recognize and expose the inequities that come before us to the best of our abilities.

To conclude, I will respond to the second question asked of me by CARL: do I believe there is a link between a diverse bench and the responsive adjudication of matters largely concerning racialized applicants? My answer, again, is, of course. In reaching this conclusion, however, we must not allow our definition of diversity to become synonymous with tokenism, the low-hanging fruit of “inclusion” that is easy to pick but fails to reach the core of the issue. We must strive to administer justice in a manner that not only looks equitable, but that also advances equity; and we must remember that these goals, while inter-related, are not mutually inclusive. In that sense, substantive diversity inverts the oft-cited aphorism: not only must justice be seen to be done, in that the bench represents the diverse society it serves, but justice must also be done, in that the bench recognizes and serves the diverse experiences of that society. While the former is a pre-requisite to the latter, in my view, it would be a tragic mistake to perceive it as a guarantee.