Should Canada Have a Representative Supreme Court?

Abstract

Should Canada have a representative Supreme Court? While the idea has an undeniable appeal, and is received wisdom in a variety of institutional settings in the public sphere (the federal public service, for example, is committed to becoming a representative institution), it sparks some questions. What groups or values should judges represent and how should they represent them? By what criteria should representation be assessed and in whose eyes? Finally, what does representation mean to and for the Supreme Court, and those affected by its decisions?

This set of interlocking questions must be asked against the backdrop of two broader debates in Canada – one surrounding judicial appointments and the other involving the evolving law of bias in judicial decision-making. In other words, the value we assign identity and experience of Supreme Court justices cannot be disentangled from how we appoint them, or from how we understand judicial impartiality more broadly.

In this essay, I elaborate on the questions set out above and focus on the relationship between a representative court, judicial appointments and bias. My analysis is in three parts. In the first part, I explore Canada’s increasing multicultural make-up, the rationales for a Court that reflects the diversity of Canadian society, and the current approach to representation on the Supreme Court of Canada. In the second part, I consider the relationship between a representative court and judicial impartiality, with particular focus on the Supreme Court’s decision in R. v. R.D.S. in 1997. Finally, in the third part, I examine the relationship between representation and judicial appointments.