Canada is facing a significant shortage of judges, which is impacting the efficiency of its superior courts and the Federal Court. Many of these courts are not operating at full capacity due to numerous vacancies. The Federal Court, for instance, experienced a sixfold increase in immigration filings last year compared to 2015. The Ontario Court of Appeal is also struggling with delays.

Despite the high demand for judicial positions, filling these roles has proven challenging. Many of the country’s top lawyers are eager to serve on the bench, and there are hundreds of qualified candidates available. However, the ongoing vacancies have serious consequences. Criminal trials are being postponed, civil litigants face long waits for decisions, and asylum seekers are left in limbo as their cases drag on in court.

The current approach to judicial appointments, which emphasizes diversity, is seen as a contributing factor to the problem. Critics argue that the Liberal government prioritizes a judge's physical characteristics over their legal expertise. Even if Justice Minister Sean Fraser were to fill all vacancies immediately, the underlying issues would persist due to this focus on diversity.

The government’s strategy has been in place for nearly a decade. In 2016, the Liberals restructured the advisory committees responsible for evaluating candidates for superior court positions. This change aimed to make the committees more representative of Canada’s diversity, which included dissolving previous committees that had reserved seats for police representatives. The new committees received training on diversity, equity, and inclusion (DEI).

The government has instructed these committees to consider diversity as a key factor in their assessments. This directive has led to concerns that the emphasis on diversity may compromise the quality of judicial appointments. The pool of eligible candidates for senior judicial roles tends to reflect the demographics of legal professionals from decades ago, which is predominantly white and male.

While there are qualified candidates from various backgrounds, critics argue that the focus on diversity can detract from the pursuit of excellence in judicial appointments. The government’s insistence on maintaining a specific ratio of diverse appointees may result in some positions remaining unfilled until the desired diversity criteria are met.

Additionally, applicants for judicial positions are now required to complete a questionnaire that seeks to identify their alignment with diversity goals. This includes prompts for candidates to share personal information that reflects their life experiences. Alberta Chief Justice Ritu Khullar, who herself is a diverse appointee, has the potential to address these concerns, but the broader implications of the current appointment strategy remain a topic of debate.