We Can't Go On Together with Suspicious Minds:Judicial Bias and Racialized Perspective in R. v. R.D.S.

In recent years it has been recognized that the Canadian judiciary has been drawn from only a relatively small cross section of the community, specifically privileged white males. As a result there have been calls for, and some action in pursuit of, appointment processes that are designed to diversify the bench in order to render it more inclusive. Gender and race are the two primary categories that are invoked as the benchmarks of diversity. While it would appear that numerically there seems to be some very modest progress towards the goal of achieving a more inclusive judiciary, significant qualitative, institutional and ethical problems remain. This comment seeks to address two such problems. First, when we speak of increased "diversity" and greater "inclusion" what do we mean? Are candidates who are appointed to the bench, at least in part, on the basis of their race and gender, simply meant to reflect the pluralistic nature of Canadian society, or are they meant to represent the constituency from which they emanate? More concretely still, what do "reflect" or "represent" mean in the context of the judicial role in a contemporary democracy? Secondly, if it is accepted that racial or gender identity is an important variable in the appointment process, in what way should that identity manifest itself as ajudge performs his/her duties on a daily basis? Specifically, should one's experiences as a person of colour and/or a woman inform the execution of one's judicial office?