David M. Tanovich is a law professor at the Faculty of Law, University of Windsor, where he teaches in the areas of criminal law and legal ethics.
The latest round of federal judicial appointments in Ontario has further entrenched inequality in our courts and has led me to think about the following provocative question: Should white male lawyers have an ethical duty to say no the next time the federal justice minister comes calling, in order to force systemic change? In my view, the answer is yes.
It is not an understatement to say that we are in the midst of a crisis of representativeness in our federal judiciary.
For example, since 2012, 46 practising lawyers (including three professors) have been appointed to the Ontario Superior Court of Justice or Court of Appeal by Conservative justice ministers. Just over three quarters (78 per cent) of the appointments have been men (36/46). Only one of the appointments appears to be from a racial minority, although an exact number cannot be discerned because of the government's refusal to collect this necessary information. Things aren't much better in the other provinces or in the elevation of judges from the provincial to federal courts.
Despite repeated calls by organizations such as the Canadian Bar Association, Indigenous Bar Association, Canadian Association of Black Lawyers, South Asian Bar Association and the Federation of Asian Canadian Lawyers, academics and lawyers for more representativeness in appointments, and thoughtful recommendations to accomplish that end, the government of Stephen Harper refuses to act.
It continues to demonstrate what University of Ottawa professor Rosemary Cairns Way has referred to in a recent paper as "deliberate disregard" for representativeness.
This "deliberate disregard" has serious consequences in individual cases for accurate fact-finding and law reform and, more systemically, for the legitimacy, fairness, impartiality and repute of the administration of justice.
A drastic solution is needed, and one would be to place an ethical obligation on white male lawyers to say no.
Lawyers act in the public interest and we serve as important guardians of the administration of justice and the rule of law. Indeed, lawyers have professional obligations to "encourage public respect for and try to improve the administration of justice."
Lawyers have responsibilities that distinguish us from others. As our Rules of Professional Conduct exhort, "a lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice, including a special responsibility to recognize the diversity of the Ontario community …"
Lawyers also have a professional responsibility to take measures to prevent discrimination. The appointments process is clearly producing discriminatory results by denying opportunities to all equality-seeking groups in Canada.
It is unfortunate that it appears to have come to this.
Judicial appointments are considered by many to be the pinnacle of one's legal career, and come with tremendous financial rewards and security. Lawyers who apply to the bench want to make a difference and meaningfully contribute to the administration of justice. There is no question that saying no would be hard to do and a lot to ask. But as lawyers we are regularly faced with difficult and challenging ethical decisions. Many of them come with personal and financial costs.
Sadly, nothing else seems to have a chance of changing the status quo, for it is clear that the Harper government does not care; or worse, it appears to actually want to have a judiciary that reflects the face and ideology of its base.
Lawyers, and in particular, white male lawyers can make a difference on this issue. And so we should.