Toronto Star by Rosemary Cairns Way 19 December 2014
The latest round of federal judicial appointments offers, yet again, evidence of the government’s utter indifference to the need for a judiciary that actually reflects the population it serves.
Six months ago, Justice Minister Peter MacKay’s remarks about women and judicial appointment provoked a storm of controversy. Made in the aftermath of the June 13 announcement that nine men and only one woman had been named to the bench, MacKay’s comments about women’s judicial ambition, which he linked to motherhood, were rightly condemned. MacKay denied making the remarks and reiterated on a Facebook post (since removed) his government’s commitment to ensuring that the bench is as diversified as Canada.
Unfortunately, there is precious little evidence that this “commitment” is anything more than political hyperbole.
This government has made approximately 600 judicial appointments since 2006. It’s virtually impossible to determine whether those appointments further or frustrate the goal of diversity.
The only criteria officially tracked aside from the requisite 10 years of legal experience, is gender. The government asserts, without apology, that 30 per cent of their appointments have been women. But the federal judiciary is currently 34-per-cent female. A 30-per-cent appointment rate results in a net negative increase in the gender diversity on the bench.
This trend recently led the Chief Actuary to revise backward by eight years the estimation of when gender parity might be achieved. Expect that in 2035.
Examining the recent slew of appointments in Ontario suggests an even greater problem. Seventeen appointments were made directly from the profession. Three (or 17 per cent) were women, a figure drastically out-of-step with the government’s own claims, and one that only exacerbates the negative overall trend.
But look more closely. Seventeen judges were replaced: nine men, and eight women. These appointments actually represent a net loss in the number of women judges in Ontario by five. Gender parity is only achievable if both women and men are regularly replaced by qualified and meritorious female candidates.
I know of no shortage of qualified and meritorious female lawyers in this province. There is in fact, a surfeit of exceptional female candidates who would both enrich and diversify the Ontario judiciary. It may be, as the minister has implied, that these female candidates are not applying, but there is absolutely no evidence to support that claim. In fact, Ontario provincial appointment statistics suggest that women are applying for provincial judgeships at a rate of almost 50 per cent.
While the gender statistics are troubling, they pale in comparison to other relevant indicators of diversity. The government keeps no statistics about race, and has steadfastly resisted a chorus of requests from the profession to do so. My research suggests that the rate of Aboriginal appointment to the bench hovers at 1 per cent, and that the rate of visible minority appointments is an abysmal 0.5 per cent. None of these come even close to reflecting, in the minister’s words, the diversity that is Canada.
A superficial examination of the Ontario appointments (and that is all that is possible in the absence of information) suggests that one of the appointees comes from a visible minority community. This judge will preside in greater Toronto, where the latest census results reveal that the visible minority population stands at 46 per cent.
The fact that one appointment out of seventeen actually results in a significant increase of judges from visible minority communities serving this diverse population is shameful, particularly in the face of the minister’s claim that “encouraging people from ethnic minorities” to become judges was a “very important objective” for this government.
The legal community is virtually unanimous on this issue. The Chief Justice of Canada is on record about the need for a bench that mirrors the society it serves. The Canadian Bar Association has made repeated calls for increased diversity.
Judges wield power over people’s lives, and courtrooms provide one important forum for dialogue about what justice means, and who is entitled to it. A judiciary that reflects diversity is more likely to have the institutional capacity to deliver inclusive justice, a justice enriched and transformed by acknowledging difference and capable of commanding the respect of all the communities it serves.
On this file, the government’s actions speak more loudly than its words. We all deserve better.
Rosemary Cairns Way is a professor in the Faculty of Law at the University of Ottawa.