By David Ebner for The Globe and Mail
A year ago, Leonard Marchand became the first Indigenous chief justice of British Columbia, appointed to lead the province’s Court of Appeal. His job in downtown Vancouver is light-years from his father’s childhood in the B.C. Interior.
The elder Leonard Marchand attended an Indian Day School in the Okanagan and then a residential school in Kamloops before going on to high school, the University of British Columbia and a long life as a trailblazer. In 1968, Mr. Marchand was the first status Indian elected to Parliament. He later served in the Senate.
The younger Mr. Marchand, with advantages his father did not have, first worked as an engineer before becoming a lawyer. Yet, after two decades in law during which he helped negotiate the residential schools settlement agreement, Chief Justice Marchand still felt uncertain when he first applied to become a provincial court judge in the early 2010s.
“It’s not easy to do,” he said of putting his name forward. “It’s not easy to think of yourself in that way.”
Chief Justice Marchand, along with chief justices in Alberta, Ontario and elsewhere, is among a new generation of judges across Canada who have redefined what the bench looks like on the country’s top courts, from the Supreme Court in Ottawa to provincial appeal and superior courts.
A decade ago, and forever before that, a clear majority of judges on Canada’s most important courts were white men. That began to change after the federal government’s 2016 reshaping of the judicial hiring process, which in part focused on increasing diversity.
Now, among 1,180 federally appointed judges, 47 per cent are women, 6 per cent are racialized and 2 per cent are Indigenous, according to data compiled by the Office of the Commissioner of Federal Judicial Affairs in 2024. It is the first time the agency has compiled statistics on the varied backgrounds of all judges who decide the biggest cases.
Underrepresentation remains an issue, especially among Indigenous and racialized people, but recent gains are significant. In unofficial data from 2016, compiled by a former senior federal civil servant in Policy Options magazine, 30 per cent of judges at the time on federally appointed benches were women, 2 per cent were racialized and 1 per cent were Indigenous.
Chief Justice Marchand, looking back to his father’s boyhood and his own career, made the case for the value of diversity among judges.
“The law is the law and has to be approached impartially by all judges, but the interpretation and application of the law varies among judges – we know that,” he said. “It’s been a good thing over time to have judges from different backgrounds, because it leads to better law and better justice and better outcomes.”
Judges appointed to the federal benches are decided by the prime minister, justice minister and cabinet, but the process, since the late 1980s, starts with 17 judicial advisory committees across the country. They assess applicants and make recommendations to Ottawa.
In 2016, the Liberals overhauled the process and made “greater diversity on the bench” a specific goal. “To look more like Canada,” wrote Jody Wilson-Raybould, the first Indigenous federal justice minister and the one who led the changes, in her 2021 book Indian in the Cabinet.
The advisory committees were asked to identify “outstanding jurists” with a wide range of backgrounds and legal experience. Ottawa for the first time also started to publish annual diversity data on applicants, candidates recommended by the committees and new judges.
Up until 2016, the top judicial ranks were dominated by white men, chosen by Liberal and Conservative governments alike. From 2007 through 2015, when Stephen Harper was prime minister, two-thirds of 701 appointments were men, according to earlier data on gender from Federal Judicial Affairs. For several years, almost all new judges appointed by Mr. Harper’s government were white, a 2012 Globe story reported.
The federal Conservative Party did not respond to requests for comment.
In the new data compiled by Federal Judicial Affairs, with numbers as of February, 2024, the shift under Prime Minister Justin Trudeau is distinct.
Of 647 judges appointed before 2016 and serving as of early 2024, about 40 per cent – 271 people – are women. There are five Indigenous people and 16 racialized people. There is one person who identifies as LGBTQ.
Of the 533 judges appointed since 2016, more than 50 per cent – 281 people – are women. There are 17 Indigenous people and 60 racialized people; 31 people identify as LGBTQ.
Change perhaps is easiest to see at the top. From 1875, when the Supreme Court of Canada was established, to late 2015, when Mr. Trudeau’s Liberals won power, 86 people had been appointed to the top court: 77 men and nine women.
Mr. Trudeau’s most recent Supreme Court appointment, Mary Moreau in 2023, shifted the top bench for the first time to a majority of women, five of the nine justices. In 2021, Mahmud Jamal became the first racialized person to serve on the country’s top court. In 2022, Michelle O’Bonsawin became its first Indigenous justice.
Federal Justice Minister Arif Virani, whose family came to Canada as refugees from Uganda in 1972 when he was an infant, said merit and legal ability are the top priorities when appointing people to the bench but diversity among judges is essential. He also pointed to a record number of new judges appointed in 2024, countering criticism that the push for diversity worsened a spate of judicial vacancies in recent years.
“Diversity helps the strength of the bench, and the quality of the jurisprudence they produce,” Mr. Virani said, “but it also helps with the confidence that Canadians have in the administration of justice by seeing themselves reflected in it.”
The legal profession, including the Canadian Bar Association in 2013 and in 2020, has long advocated for more judicial diversity. Supreme Court Chief Justice Richard Wagner has extolled the value of diversity in speeches and his annual press conferences.
While diversity has increased, there are still major areas of underrepresentation.
The first full look at judicial diversity from Federal Judicial Affairs will be updated each year. New data should land in March, the second annual look at all older and newer judges serving on the top courts.
These numbers are in addition to the annual tally of applicants, candidates recommended and judges hired, for which Federal Judicial Affairs has published diversity statistics since 2017.
A comparison of the initial annual numbers in 2017 with the latest numbers in 2024 shows an increase in the percentage of women and racialized people applying but little change among Indigenous applicants. The percentage of women hired in 2024 was higher than in 2017, but the percentage of racialized people and Indigenous people was roughly the same.
Of 1,180 judges, 1.9 per cent are Indigenous, compared with 5 per cent of Canada’s population. According to Statistics Canada, 27 per cent of the country’s work force are racialized people and 19 per cent of lawyers are racialized, but only 6 per cent of judges are racialized.
Women have made the most progress. Of 28 chief justices in Canada, for example, 15 are men and 13 are women, but most of them are white. Sylvia Guirguis, a lawyer at Singer Kwinter in Toronto, has argued for a greater diversity among women hired as judges, but she underscored the importance of the increase of women on the bench.
Ms. Guirguis recalled being a student when Supreme Court Justice Andromache Karakatsanis visited Osgoode Hall Law School in the early 2010s. Justice Karakatsanis had been appointed to the top court by Mr. Harper in 2011.
“It’s a really big deal to see yourself reflected on the bench,” Ms. Guirguis said.
There has been a series of firsts in recent years. Among them are Chief Justice Michael Tulloch in Ontario, the first Black provincial Chief ustice; Deborah Fry, the first woman to serve as chief justice of Newfoundland and Labrador; and Shannon Smallwood, the first Indigenous person to serve as chief justice of the Northwest Territories superior court.
The firsts also include Ritu Khullar, Alberta’s chief justice, appointed to run the province’s Court of Appeal in late 2022. She is the first woman of South Asian descent to become a provincial chief justice – and she’s experienced the wider resonance of what diversity means.
“I have been struck, after I was appointed to the bench, by how many people who I didn’t know came up to me and told me how important my appointment was to them, and the impact it had on them,” Chief Justice Khullar said. “And I was actually quite taken back. I had not appreciated the impact that would have.”