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Cracking the system

How do we get more diversity on the bench when there’s no transparency in the appointments process?
|Written By Stephen Lautens

As far as political firestorms go, Justice Minister Peter MacKay’s June was slightly hotter than most. It began innocently enough on June 13 with the announcement the federal government had appointed 12 new judges to the bench. It was undoubtedly expected to be a routine announcement to fill various vacancies across the country; in law firms and wine bars across the country there would be small gatherings of law firm partners to toast the elevation of their colleagues to the bench. Then something unusual happened. It was pointed out not a single one of the new judicial appointments was a woman. The only woman mentioned in the announcement was already a judge being promoted to a higher court.

In some ways the timing could not have been worse. The Harper government has been seen to be waging a trench war against the courts for years as it legislatively tries to reshape Canada in its image only to find the greatest roadblock is a legal system that takes the Charter of Rights and Freedoms and constitutional law seriously.

Conservatives have made no secret they consider the courts to be actively obstructionist, providing the Harper government with setbacks in a series of key hot-button areas: Senate reform, immigration, health care, native claims, prostitution, and a host of law-and-order initiatives like mandatory minimum sentencing. In the wake of the decision regarding Justice Marc Nadon’s eligibility to sit on the top court, the criticism of the Supreme Court of Canada reached previously unthinkable levels with the minister of justice and Stephen Harper himself weighing in after the fact with their own attack on the highly regarded Chief Justice Beverley McLachlin (herself a Mulroney appointment). With bar associations, law school deans, and the legal community (here and abroad) united in defending the chief justice, the Harper government was left sullen and with its fingers badly singed, reconsidering the wisdom of frontal assaults on the court.

The muttering from the grassroots and echoed by many Conservative MPs is about “judge-made law” or “unelected, unaccountable judges” thwarting the supreme will of the people as expressed in Harper’s 2011 majority government. An appreciation of the role of the courts probably isn’t helped by the fact the Harper government has one of the lowest, if not the lowest, number of lawyers sitting on government benches in Canadian history.

Against this background it is hard to understand how the government and the minister of justice failed to appreciate the heightened scrutiny their relationship with the courts attracted. While other countries followed the World Cup, for a time, Canada’s national pastime became evaluating judicial appointments.

Fun with numbers

It’s easy to get bogged down in statistical analysis, but numbers do tell the story.

To counter accusations that women were being pointedly passed over for judicial appointment by the Conservative government, MacKay said 30 per cent of the judicial appointments made by the Conservatives since 2006 have been women, and now make up 34 per cent of the sitting federal judges. This, he said, is a 17-per-cent increase in women compared to when the Liberals were in power.

To clarify, the recent Conservative governments haven’t appointed 17-per-cent more women judges. The 17 per cent refers only to the size of the increase in the number of women appointed to the bench. In the eight and a half years from Jan. 1, 2006 to June 1, 2014 women sitting on the federal benches increased by five per cent (to 34 per cent from 29) of the total. Just to further muddy the statistical waters, according to the Department of Justice, 182 women have been appointed as judges by the federal government out of a total of 602 appointments made since 2006.

That is an average Conservative appointment rate of 30-per-cent new women judges while the total of all federally appointed women judges now stands at 34 per cent.

How we reached a 34 per cent total with an average 30-per-cent appointment rate is a bit of a mystery. No one is quite sure, including the academics who have studied the matter, but it is suggested it has less to do with increased women appointees and more to do with older men retiring from the bench in greater numbers.

At least the government publishes numbers on gender representation on the bench. As we will see, the government steadfastly refuses to compile or make available information about who actually applies for a judicial appointment or the ethnicity or diversity of the final appointments made.

Stepping up to the bar

As MacKay noted, 30 per cent of the judicial appointments made by the Conservatives since 2006 have been women (compared to 40 per cent in the Liberals’ last year in power), but that leaves the larger question of why federal judicial appointments of women continue to move at a glacial pace, let alone approaching gender parity.

Every play has a second act, and MacKay’s began when he was asked this very question. The fog of politics has descended on what MacKay actually said at a June 13 meeting of the Ontario Bar Association, with attendees and the minister disagreeing. According to the Toronto Star, when asked to commit sociology and explain the lack of women and visible minorities on federally appointed courts, MacKay said they just “aren’t applying” for the jobs. He reportedly further speculated that women might fear the “old boys” network of the judiciary and that they could be handed circuit-court work that would take them away from their homes and families.

Perception is reality in politics, and even though MacKay took to Facebook to deny he had said anything sexist or insensitive in his remarks at the OBA meeting, the perception was that he was blaming women for not stepping up to the bar (or bench, in this case). MacKay said his comments were in fact meant to encourage women to apply for judicial appointments in greater numbers.

The problem is, what are those numbers?

Ignorance is bliss

The Office of Federal Judicial Affairs is responsible for the administration of the federal judiciary and appointments process. It does not report data about the gender and ethnicity of judicial applicants. It collects gender data via a tick-box on the application form, but unlike the province of Ontario or the United Kingdom, the Canadian federal government does not release that information. The non-reporting of this basic information makes it impossible to challenge MacKay in his assertion that the main impediment to more women judges is that not enough women are applying in the first place. Anecdotal information from various legal groups and associations suggests this is not true and women are, in fact, applying in ever-increasing numbers.

With regards to visible minorities, the application process leaves any questions of ethnicity to the applicants to spontaneously self-identify entirely at their option. The downloadable judicial application form gets all the way to page 10 before it half-heartedly asks:

OPTIONAL

Given the goal of ensuring the development and maintenance of a judiciary that is representative of the diversity of Canadian society, you may, if you choose, provide information about yourself that you feel would assist in this objective. There is no obligation to do so. (emphasis theirs)

By the way, did we mention it is optional, and you may, if you choose, provide it, but there is no obligation to do so?

When challenged, as it recently was by the Canadian Association of Black Lawyers, the Commissioner for Federal Judicial Affairs, in a letter, pointed to this question on the application form as proof of its seriousness about diversity. There is, however, no statutory requirement or published policy in the federal judicial appointments process to consider the gender or ethnicity of the applicants or the lack of diversity on the bench. Instead, as MacKay repeats on his Facebook page, judicial appointments are “ultimately based on the only truly important criteria applied to all our appointments: merit and legal excellence.”

Not collecting data is a good way to not have to face the consequences of policies or actions. Dr. Erin Crandall, a leading expert on the judicial appointments process at Queen’s University, observes other jurisdictions that collect and publish gender and ethnicity data about those applying for judicial appointments — like Ontario and the U.K. — show far greater progress in achieving better representation. Another academic who has spent countless hours trying to construct the data the judicial appointment process refuses to collect or release is University of Ottawa law professor Rosemary Cairns Way. She says her careful review of the data suggests a “pattern of deliberate disregard” for diversity on the bench, which resulted in her calculation that just three of 191 federal judicial appointments (1.6 per cent) across Canada have gone to non-white applicants in the past five years.

Ontario does publish the statistics relating to provincial judicial applicants’ gender. Between 2006 and 2012 in Ontario 299 of the 636 provincial judicial applicants were women (47 per cent). Of the total 72 appointments made from this pool, Ontario appointed 32 women to the bench (44 per cent).

Other than Ontario, only B.C. collects similar stats. The B.C. Judicial Counsel’s latest report for 2012 shows of judicial applicants 53 per cent were male and 47 per cent were women. Of the appointments made 58 per cent were men and 42 per cent were women.

Both Cairns Way and Crandall suggest Ontario’s better track record can be partly attributed to the greater transparency of revealing who is in the original application pool — something the federal government refuses to do. In short, when a government is more transparent at the early stages, it produces better outcomes or will be held more accountable for poor outcomes.

Selecting the selectors

Once applications for a judicial appointment are received they are sent to one of 17 regional federal judicial advisory committees under the Commissioner for Federal Judicial Affairs Canada with the responsibility for the administration of the appointments process on behalf of the minister of justice. There are 17 regional appointments committees — one in each province and territory with three in Ontario and two in Quebec, plus one for the Tax Court of Canada. In late 2006, the Conservative government rewrote the rules for the composition of the committees. Now each regional committee consists of eight members:

•     a nominee of the provincial or territorial law society;

•     a nominee of the provincial or territorial branch of the Canadian Bar Association;

•     a judge nominated by the chief justice of the province or by the senior judge of the territory;

•     a nominee of the provincial attorney general or territorial minister of justice;

•     a nominee of the law enforcement community; and,

•     three nominees of the federal minister of justice representing the general public.

In 2006, the Conservative government added the nominee from the law enforcement community, who is also chosen ad hoc by the federal government. There is no known structure or criteria behind the selection process. It was a curious addition touted as part of its law-and-order agenda, but considered more than a little at odds with the idea of the judiciary and the police having very separate and sometimes opposing agendas.

According to the web site of the Office of the Commissioner for Federal Judicial Affairs Canada, “independent judicial advisory committees constitute the heart of the appointments process.”

MacKay has also emphasized the “independence” of the committees as a shield against the charge of political meddling. In 2007, however, the Canadian Judicial Council itself complained about the introduction of the changes in a strongly worded press release pointing out “the majority of voting members are now appointed by the minister” and the judicial appointments advisory committees “may neither be, nor be seen to be, fully independent of the government.” Nothing has changed to the committees’ structure since that criticism was raised.

It also needs to be emphasized that unlike jurisdictions like Ontario, where the attorney general must choose from a committee list that can contain as few as two names, the federal appointment decision rests entirely with the minister of justice. Federal committee recommendations are not ranked, but are simply marked “recommended” or “unable to recommend.” Federally it is possible for the minister of justice to order “off the menu” so to speak, and make his own appointments without a reference, or with a perfunctory one, to an appointments committee. Former Ontario attorney general Michael Bryant is more blunt about where the decision is actually made: “the responsibility for judicial appointments is well entrenched in the PMO.”

A brief review of the minister of justice’s picks for his allotment of 52 of the seats on the 17 committees shows a very eclectic mix of appointments. Sprinkled among the handful of retired judges, QCs, and lawyers, the public lists of federal nominees to the committees have a number of individuals who are surprisingly hard to learn anything about, as no bios or other information are attached to the names. Others are easier to find.

In Manitoba, one of the minister’s appointments is Marni Larkin, who raised eyebrows about her qualifications when she was also appointed in 2012 to a five-year term on the board of the CBC.

Larkin served as a strategist and organizer for the Progressive Conservatives in Manitoba during the 2011 provincial election. Also on the Manitoba committee as a representative of the federal minister of justice is John Tropak, who the Winnipeg Free Press described as “a well-known Manitoba Conservative campaign worker,” and in an April 2013 article further suggested was a likely future Conservative Senate appointment.

The Facebook page of one maritime appointments committee member shows the friend in her first slot is Peter MacKay’s mother. Another committee member is the director of HR and legal affairs of a city in the Maritimes, is active in the local Conservative riding association, and regularly posts pro-Harper government/anti-Justin Trudeau tweets on his Twitter account. There is one federal appointment committee member who has had careers as a former SWAT-team member, Crown prosecutor, and church minister. Another is the former chairman of the Canadian Hockey Association. Several lawyer appointments have obvious connections to Conservative families. Curiously, some of the lawyer members who sit in review of future judges are quite junior with fewer than 10 years of practice under their belts.

While many of these appointments also show community involvement, it is hard to see what qualifies them to assist in the selection of judges as the appointed representatives of the federal government. There are no useful guidelines or published selection procedures for their appointment, giving the justice minister the freest hand possible in making the appointments to the committees. At least one committee member I spoke to had no idea himself how he had been selected.

Breaking down the composition of the appointments committees by gender, there are currently 121 individuals sitting on the 17 committees, 30 are women, accounting for 24.8 per cent of the sitting members overall (not including 12 current vacancies). The federal justice minister is responsible for directly appointing a total of 52 committee members (three per regional committee, and not including their law enforcement appointee). Of the full complement of 52 ministerial appointments to the committees (six of which are vacant), only nine are women (17.3 per cent).

Agreeing with academics like Cairns Way and Crandall, who have studied the issue closely, former Liberal justice minister Irwin Cotler draws a direct line from the fact that “women are severely under-represented on these committees themselves” to a resultant lack of women on the bench.

If women are under-represented at only 17.3 per cent within the federal appointments to these committees, a search for visible minorities sitting on them appears even more problematic. In researching the published names of committee members, visible minorities are almost impossible to find outside of the northern jurisdictions.

One of the much-touted duties of the appointment committees is to consult broadly “both inside and outside the legal community.” In speaking with Arleen Huggins, president of the Canadian Association of Black Lawyers, she says her organization has never been consulted by the current government regarding any judicial appointments. Similarly, to her knowledge neither have any of the 16 legal diversity groups that make up the Roundtable of Diversity Associations. A letter written recently to MacKay expressing CABL’s concerns about diversity representation and transparency has, as of writing, gone unanswered by him.

The only public guideline to choosing appointment committee members is that “the Minister of Justice attempts to reflect factors appropriate to each jurisdiction including geography, language, multiculturalism, and gender.” There is no explanation of how the minister attempts to do this, or why it has resulted in just 17.3 per cent of his appointments being women and an unknown, but decidedly much smaller, number of visible minority members.

Don’t ask, don’t tell? More like: We don’t ask and we don’t want to know.

The debate over the pace of women appointments to the bench started with Peter MacKay’s untestable observation that not enough women were applying to be judges. With about half of the 1,124 sitting federal judges having been appointed since 2006, the number of women judges as of July 1, 2014 stands at 383 or 34.1 per cent.

The gender of persons who are ultimately named judges are reported, but researchers struggle to discover the numbers relating to other forms of diversity of sitting judges, which is not officially measured or reported in any way.

Cairns Way has again conducted her own research where the government refuses to tread. Her research indicates the appointment rate of aboriginal judges hovers around one per cent, while the appointment of members of visible minority communities to the federal bench is closer to an abysmal 0.5 per cent. Her conclusion? “Clearly, ensuring that the judiciary reflects the community it serves is not a priority for this government.”

It is also hard to not reach the parallel conclusion that the federal government does not want to have its hands tied in any way when it comes to who it ultimately appoints. The evidence, as a trial lawyer would point out, is set out every step along the way.

Exhibit A: The minister of justice controls the majority of the appointments to the 17 regional judicial appointments committees. This was one of the earliest acts of the new Conservative government. There are no serious or measurable qualifications for the minister’s nominees.

Exhibit B: Women and visible minorities are conspicuously under-represented in the minister’s nominees to the appointments committee accounting for only nine of 52 appointee positions.

Exhibit C: The government refuses to collect and publish data regarding who is actually applying to become a federal judge, making it impossible to challenge Peter MacKay’s statement that not enough women are applying for the job. Statistics are not the government’s friend.

Exhibit D: MacKay has repeatedly said “only truly important criteria applied to all our appointments” is “merit and legal excellence.” The commission’s web site lists the factors intended to provide a basis for assessing the suitability of candidates for judicial appointment, but they are so broad they hide a lot of discretion in the catch-all description “merit.” “Awareness of racial and gender issues” is listed as one of the many things that “may be considered in assessing a candidate’s suitability.” Conspicuously absent is actual membership in an under-represented race or gender.

Punctuality, however, is enumerated as a needed personal characteristic.

Exhibit E: For all its structure, the federal judicial appointments committee can only “recommend” candidates for appointment, but the government is not bound by the recommendation, and the minister of justice (or the Prime Minister’s Office) actually makes appointments unhindered by the process. The almost universally panned appointment of former public safety minister Vic Toews comes to mind.

Exhibit F: The outcome? Women stand at 34.1 per cent of the federal judiciary. How long will it take for women to achieve that extra 16 per cent to stand as equals? The answer may be in the report of federal judges’ pension plans. Tabled in Parliament, the Pension Plan for Federally Appointed Judges has to make actuarial predictions about the future. Buried in its assumptions on costs and lifespans was the projected gender balance of federally appointed judges. In 2010 the report tabled in Parliament assumed there would be an equal number of male and female judges by 2027. The update three years later and tabled March 2014 set out the new date of expected gender parity on the federal bench: 2035.

That also means in just three years the goal of equal gender representation lost an additional eight years of progress. Based on the best evidence available to the federal government it also projects a net growth of only about 0.76 per cent a year in women on the bench for the next 21 years. Visible minorities and aboriginals who are starting off with a current grand total of 1.5 per cent of the federal judgeships may have a little longer to wait.

This confirms the observation of Linda Robertson, chairwoman of the women lawyers forum of the Canadian Bar Association-B.C., who said it has “only been since the Conservatives came in that the number of female appointments have slowed down.”

Verdict: Peter MacKay says the problem and the solution is: “We need more women to apply to be judges. It’s that simple.” Clearly there is a problem, but the lack of women and visible minorities applying for the job of judge isn’t it.


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