Why Atlantic Canada risks losing its seat on the Supreme Court bench

2016/08/05 Leave a comment

David McLaughlin’s concerns on regional representation, where the comparative lack of diversity among Atlantic judges comes up against overall objectives for a more diverse Supreme Court):

The requirement that the Atlantic provinces have a guaranteed Supreme Court seat is a clear matter of convention, custom, practice, and tradition. How do we know? Because it has been the case since Canada existed. It is not an explicit legal obligation. A convention, with higher legal consequence, is not a custom, which may simply be a long-standing practice or tradition. A convention is not sacrosanct. Political actors can change it. That is how societies evolve.

Under the failed 1992 Charlottetown accord, the federal government would have been required to name judges from lists submitted by provinces and territories. This was a contemporary recognition of what might be termed the “regionalization” requirement of Supreme Court representation. It hewed closely to the original precepts of Confederation. The accord also called for formal consultation by provinces and territories with aboriginal peoples in the preparation of such lists.

Mr. Trudeau’s process inserts a more explicit “diversification” requirement for Supreme Court representation. The court should mirror Canadian society more visibly and directly as it pronounces on law that affects people.

This is all to the good. Except when it is not. This new process contemplates a clear tradeoff between historic convention and contemporary correctness. Since this convention is well known and established, there is no question that Mr. Trudeau is being deliberate, if not exactly forthright, about his intentions.

Justice Cromwell has not yet been replaced. Another judge from Atlantic Canada may yet be named. But this is no longer guaranteed. And that should exercise residents and governments in those four provinces.

Source: Why Atlantic Canada risks losing its seat on the Supreme Court bench – The Globe and Mail

And Konrad Yakabuski notes, I think correctly, that diversity is likely not to include much ideological or philosophical diversity (although I would not characterize it in the dark tones he does – really, seeing discrimination “lurking in every crevice of society”):

Canadians are lucky that, in Jody Wilson-Raybould, Mr. Trudeau has the most qualified Justice Minister in recent memory. As an aboriginal and former adviser to the B.C. Treaty Commission overseeing treaty negotiations between First Nations and the Crown, she is sensitive to the balancing act involved in governing and not prone to political pandering. She can be counted on to recommend judges of the highest calibre, regardless of their origins.

Just don’t expect Mr. Trudeau’s definition of diversity on the bench to include ideological or philosophical variety. The process he has put in place pretty much ensures the selection of liberal judges. Three of the advisory body’s seven members are Liberal appointees. Even if you might expect former Progressive Conservative prime minister Kim Campbell to argue for ideological diversity on the court, it’s an argument she’s likely to lose.

To be sure, the Liberal government has an interest in appointing judges that will uphold its laws, including its controversial legislation on assisted dying. But Mr. Trudeau has a greater political interest in naming judges that tick off his diversity boxes.

And with a majority of his advisory body’s members chosen directly by the legal profession – with the Canadian Bar Association, the Canadian Judicial Council, the Federation of Law Societies of Canada and the Canadian Council of Law Deans each getting to pick a member – the short list of potential top court judges Mr. Trudeau receives will reflect a liberal activist bent that sees discrimination lurking in every crevice of society.

 Diversity yes, but don’t expect big changes on Supreme Court 

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How a new appointment process ushers in Supreme Court transparency

2016/08/04 Leave a comment

Two separate commentaries on the new Supreme Court process and the diversity aspects, starting with Emmett Mcfarlane:

Moreover, statements that the committee will canvass across Canada to fill the new appointment has been met with criticism that the government is doing away with the convention of regionally-based appointments. The upcoming vacancy is historically Atlantic Canada’s seat on the Court. There is speculation that one reason the government would look to other parts of Canada for the next appointment is the desire to appoint an Indigenous or visible minority candidate to the bench. Not appointing someone from Atlantic Canada would not conflict with anything in the constitutional text, but it would be contrary to convention. While the courts tend not to enforce conventions, the government invites significant controversy if it chooses to abandon one here.

The regional issue aside, the lack of diversity on the Court is also a serious problem, at least from the perspective of the institution’s legitimacy. Lack of representativeness in a key governing institution like the Court runs contrary to the stated objectives of the Trudeau government (because it’s 2016, after all). Since the Court’s creation in 1875, every justice has been white. The language of the committee’s mandate is no doubt intended to rectify that. Whether it will, and whether the new process will succeed in bringing greater transparency to appointments and to the Court itself, remain to be seen.

Source: How a new appointment process ushers in Supreme Court transparency

Errol Mendes on the same point:

While the advisory panel has the mandate to consult widely (including with the Chief Justice of the Court, provincial representatives, and MPs and senators from all parties) it must go further in filling in what is missing – namely the lack of aboriginal and visible minority representation in the court while also achieving full gender parity on the bench.

Mr. Trudeau emphasized that the court must reflect our diverse society to bring different and valuable perspectives to the decision-making process. That is indeed what should be part of an appointment process based on merit. To achieve that, the advisory committee must perform extensive outreach activities, going into every part of our legal institutions to seek out the most competent and meritorious of such representatives of the missing diversity on the court.

Expectations of transparency and openness have been raised high by this new appointment process, but so has the expectations of a more diverse court. Because it is 2016.

 New advisory panel needs to dig deep for diversity on Canada’s top court 

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Federal government’s Canada.ca one-website project proving costly — and confusing

2016/08/03 Leave a comment

While I agree with the logic of consolidation and having one integrated government portal for Canadians (I worked on citizen service strategies in the early days of Service Canada), my experience with Canada.ca is mixed, as I find the information I am looking for, more as a researcher, harder to find than before.

And while the concerns raised by this article are valid, I would be curious to know if there are any public studies on the usability of the site for citizens.

A briefing note provided to former Treasury Board of Canada Secretariat president Tony Clement on Dec. 2, 2013, contains a document called Public Opinion Research plan, ongoing user feedback on new Canada.ca website. When obtained by the Citizen, the entire document had been redacted. Government redacts, or blanks out, portions of documents that may breach a person’s privacy rights or are considered to be too sensitive for public consumption.

Source: Federal government’s Canada.ca one-website project proving costly — and confusing | Ottawa Citizen

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Ottawa overhauls process for selecting Supreme Court justices

2016/08/03 Leave a comment

By my count, of the seven members, four women, one indigenous person, no visible minorities. Will be interesting to see how this process works and the results it generates:

Members of the new advisory board nominated by the legal community include: Susan Ursel, a senior partner with a Toronto law firm who has been recognized for her support of the lesbian, gay, bisexual, transgendered and two-spirited (LGBTT) communities in Canada; Jeff Hirsch, president of the Federation of Law Societies of Canada and partner with a Winnpeg law firm; Richard Jamieson Scott, a former chief justice of the Manitoba Court of Appeal and counsel, arbitrator and mediator at a Winnipeg law firm, and Camille Cameron, dean of the Schulich School of Law at Dalhousie University and Chair of the Canadian Council of Law Deans.

The Prime Minister said opening up the process helps reassure Canadians “that all members of the Supreme Court are both fully qualified and fully accountable to those they serve” across the country.

“The appointment of a Supreme Court justice is one of the most important decisions a Prime Minister makes. It is time we made that decision together.”

All candidates must be functionally bilingual, the government says.

The three members of the advisory board appointed by the Trudeau government include: Ms. Campbell, who served as prime minister in 1993 when she led the Progressive Conservative Party, former Northwest Territories premier Stephen Kakfwi and Lili-Anna Peresa, president of Centraide of Greater Montreal. Centraide is the Quebec presence of United Way Canada.

The government will mandate the advisory board to support the goal of a gender-balanced Supreme Court that also reflects Canada’s diverse society. With Justice Cromwell’s departure, the bench is equally split between men and woman and so a new ninth judge will tilt the balance one way or another.

“A diverse bench brings different and valuable perspectives to the decision-making process, whether informed by gender, ethnicity, personal history, or the myriad other things that make us who we are,” Mr. Trudeau wrote.

Source: Ottawa overhauls process for selecting Supreme Court justices – The Globe and Mail

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Justice Rosalie Abella: Doing justice to her father’s dream

2016/08/01 Leave a comment

Good profile of the background and values of Justice Abella:

She came to national prominence before her 40th birthday, when Liberal cabinet minister Lloyd Axworthy asked her to head a national commission on employment and minorities. After coining the term “employment equity,” she was attacked by critics coast to coast, but had the last laugh when a Progressive Conservative prime minister, Brian Mulroney, implemented many of her recommendations in the federally regulated work force (at such institutions as banks, Crown corporations and communications companies). The system she recommended is still in place today.

But there were no “quotas” in her recommendations – not after her father and others like him had faced quotas. In any event, quotas have a way of becoming a ceiling, she felt.

…Her philosophy as a judge is rooted in her parents’ experiences. She is a defender of human rights, of the rights of children, refugees, religious minorities, women.

She was the only judge to defend a Muslim woman’s right to wear a niqab (face veil) in almost all cases while testifying in a criminal trial. Determined to hold states accountable for human-rights violations, she was the only judge who said the family of Zahra Kazemi could sue the government of Iran for its involvement in the Iranian-Canadian photojournalist’s violent death. (The other judges said that Canadian law gives foreign officials immunity.)

Appointed to the Supreme Court by prime minister Paul Martin in 2004, she’s an activist judge, although she rejects the label. (Conservative judges have been activist, too, she says, in striking down laws protecting minorities.) “It’s not what you stand for; it’s what you stand up for,” she likes to say.

She has been reading Hitler’s Justice: The Courts of the Third Reich by German lawyer Ingo Müller, on the complicity of German judges in the Holocaust. She says they applied the letter of the law not to be seen as “activist.”

She scorns critics of judicial activism. “The plea for judicial deference [to elected legislators] may be nothing more than a prescription for judicial rigor mortis,” she said in a 2002 speech. The ubiquitous phrase “rule of law” annoys her: The Holocaust, apartheid and U.S. segregation unfolded according to law. She has an expansive view of the judge’s role, calls the Charter of Rights the “finest manifestation” of Canadian democracy.

“Of all the public institutions responsible for delivering justice, the judiciary is the only one for whom justice is the exclusive mandate,” she says. “This means that, while legislatures respond of necessity to the urgings of the public, however we define it, judges, on the other hand, serve only justice.”

This winter, she stood up for a more inclusive approach to marginalized people in two cases. In one, she wrote a majority ruling making it easier for refugee claimants to stay in Canada on “humanitarian and compassionate” grounds; in the other, she wrote the court’s unanimous ruling that requires the federal government to recognize the rights of Métis and non-status Indians, saying they have been living “in a jurisdictional wasteland.” Two weeks ago, she stood up for 500,000 non-unionized federally regulated workers, writing a majority ruling that strengthened their job security.

Source: Justice Rosalie Abella: Doing justice to her father’s dream – The Globe and Mail

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StatsCan looking for powers to make all surveys mandatory, compel data from companies

2016/07/28 Leave a comment

Will be interesting to see how the official opposition responds to this or whether, given the recognition by some prominent Conservatives that the arguments used to justify replacing the 2011 Census by the NHS were weak and wrong-headed, it lets this pass without comment:

Statistics Canada is privately floating the idea of new powers that would make all of its surveys mandatory by default and force certain companies to hand over requested data, such as credit card transactions and Internet search records.

Currently, the agency can ask for any information held by governments and businesses, but officials have long found it hard to get information like point-of-sale transactions that could give a more detailed and accurate picture of household spending.

The agency’s proposal would compel governments and companies to hand over information, and levy fines to discourage “unreasonable impositions” that “restrict or prevent the flow of information for statistical purposes.”

Corporate fines would depend on a company’s size and the length of any delays. The changes would also do away with the threat of jail time for anyone who refuses to fill out a mandatory survey, such as the long-form census.

The recommendations, contained in a discussion paper Statistics Canada provided to The Canadian Press, would enshrine in law the agency’s independence in deciding what data it needs and how to collect it.

New legislation to update the Statistics Act is expected to be tabled this fall, and the Liberals have promised to give Statistics Canada more freedom from government influence.

The current law permits the federal government to make unilateral changes — eliminating longitudinal studies about the Canadian population, for instance, or making the long-form census a voluntary survey, a Statcan spokesperson said.

Should the federal Liberals agree to the agency’s proposals, it would build a political wall between the government and Statistics Canada and ensure statistical decisions by the chief statistician take priority over political considerations.

StatsCan needs independence says Bains

Innovation Minister Navdeep Bains, who is responsible for Statistics Canada, said the government is still reviewing the Statistics Act. He said the government is committed to “strengthening the independence of Statistics Canada.”

“For a national statistical office to be credible, there must be a high degree of professional independence,” Bains said in a written statement.

“Canadians need to trust that their data are produced according to strict professional standards, ethics and scientific principles.”

Source: StatsCan looking for powers to make all surveys mandatory, compel data from companies – Politics – CBC News

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The West’s Crisis of Leadership [focus on France] – The New York Times

2016/07/25 Leave a comment

Sylvie Kauffmann on the weakness of political leadership in France, contrasted with the resilience of its population:

Today, France and the United States are probably the West’s two main targets of Islamist terrorism. In France, our government warns that we must “learn to live with terrorism.” Yet just when they need to be stronger, our societies seem fragile, tense, stirred by powerful winds of revolt against their elites and an economic order that has increased inequalities. Can they withstand the shock?

Defying the odds through the last 18 difficult months — three bloody waves of terrorist attacks and sporadic terrorist incidents, strikes, violent protests against a reform of labor laws, high unemployment and floods — the French have proved surprisingly resilient. The annual survey of the National Consultative Human Rights Commission, carried out in January, even showed tolerance on the rise “despite the posture of some public figures.” While the 2008 economic crisis reduced tolerance, the 2015 attacks produced the opposite effect, “leading to soul-searching and civic mobilization” against extremists, the commission said.

Similarly, the Pew Research Center’s 2016 Global Attitudes Survey found that France (the European Union country with the biggest Muslim and Jewish populations) was the European nation second only to Spain in valuing diversity. The monthlong Euro soccer competition, hosted by France just before the Nice attack, also inspired intense fervor from the French public for its very diverse national team; it was supported throughout by enthusiastic singing of “The Marseillaise,” even after it lost the final game.

Some statistics from the Ministry of Interior, though, show a different picture: The number of racist criminal acts went up 22.4 percent in 2015. The reason for this contradiction, the Human Rights Commission’s experts suggest, is that while individuals who carry out such acts are becoming more radicalized, the society at large is more aware of the dangers of polarization. This attitude shows in an increasing number of civic initiatives, and in the results of the regional election last December: After the far-right National Front did very well in the first round, voters rallied against it and prevented it from winning a single region in the second round.

Whether such healthy reactions will prevail after the Nice massacre — and any future one — is an open question. With a big immigrant population from North Africa and a very strong National Front locally, Nice itself is particularly vulnerable.

The sad reality is that people of good will are not helped by a significantly mediocre political establishment. There could be national unity at the bottom — if only there were at the top.

This was illustrated again immediately after the Bastille Day attack. While citizens of all backgrounds and colors joined to pay their respects to the victims on the Promenade des Anglais, while the florists of Nice united to cover the bloodied avenue with flowers, while the nation was in shock, our politicians bickered over whether the government could have prevented this new atrocity. With the 2017 presidential election flashing big on his radar screen, Mr. Hollande’s rival and predecessor, Nicolas Sarkozy, did not even wait for the end of three days of national mourning before mounting a ferocious attack on what he saw as the government’s passivity.

The political debate in France has not quite reached the abyss of the campaign for the June 23 referendum on Brexit in Britain yet, nor of Donald J. Trump’s surreal pronouncements, but it is going in that direction. Le Monde’s longtime cartoonist Plantu feels that politicians, media and social networks have stolen his job: “They are now more caricatural than my own caricatures,” he said. In an interview with the Journal du Dimanche on Sunday, Prime Minister Manuel Valls openly worried about a trend that he describes as “the Trumpization of minds.” This, he said, “cannot be our response to the Islamic State.”

When citizens behave more wisely than the men and women who compete to represent them, the time has come to take a hard look at the state of our political systems and its impact on our societies further down the road — particularly when modern democracies are under threat from outside forces that have declared war on them.

Source: The West’s Crisis of Leadership – The New York Times

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Allan Richarz: A more diverse bench isn’t the answer

2016/07/23 Leave a comment

Nice to see that my analysis (Diversity among federal and provincial judges – Policy Options) is provoking some discussion and debate.

But I think for most advocates of greater diversity on the bench and public and private institutions more generally, the fundamental purpose is to encourage a greater diversity of life experiences and views to inform and improve decision-making.

We all have our implicit biases and assumptions. Judges are no exception, even if their training and decision-making (“slow thinking” to use Kahneman’s phrase) are designed to help them be more mindful of these biases.

It is not simply assuming that female, visible minority and indigenous judges will necessarily make different decisions than male, non-visible minority or non-indigenous judges, but that their different backgrounds may provide a different perspective to interpreting the law.

Moreover, the legitimacy of public institutions requires a reasonable correlation between the population and their representation in these institutions.

How would Richarz feel if the numbers were reversed with only 2.1 percent of federal judges being white?

 

So while I fully agree with Richarz that improved judicial diversity is not a panacea for over-representation in prison or other similar issues, this does not undermine the overall case for diversity:

A recent report by Policy Options magazine reveals that indigenous and minority representation on Canada’s judiciary registers in the low single digits. This has led to the predictable hue and cry over a “judiciary of whiteness” from assorted legal analysts cum race-baiters. The real problem, however, is not with a lack of minority representation on the bench, but with the patronizing and divisive assumption that having more minority judges will serve as a sort of panacea for certain racial groups’ over-representation in prison. The clamour for more minority appointments to the bench is simply a smokescreen for pushing broader political ends that will ultimately do nothing for the communities it purports to help.

There are a number of troubling assumptions underlying the contention that greater minority representation on the bench will result in more positive outcomes for minority defendants. The first seems to take as a given that, say, an African-Canadian judge will cut a black defendant slack based not on the law, nor on the facts of the case, nor on the judge’s legal experience, but on nothing more than a sense of racial solidarity. This would be unacceptable in any other contexts. A male judge acquitting a male defendant of sexual assault based on a wink-wink, nudge-nudge “you know how it is” would raise immeasurable howls of protest.

Such an approach also unfairly reduces minority judges to just that, a minority judge. Becoming a judge is no easy task. Never mind the long hours at law school, passing the bar exams, spending a decade or more as a practising lawyer and earning the recommendation of one’s peers; all that is thrown out the window when one is simply reduced to “the Asian judge” or “the black female judge.” Perhaps for activist lawyers who have built careers on sowing racial divisions such labels do not matter, but for minority lawyers simply wanting to work and be treated no differently from their white colleagues, being reduced to a mere token is undoubtedly patronizing and unfair.

Adding to this is the unfair denigration of the thousands of judges serving  across Canada. While it is certainly fair to note that the judiciary is somewhat “male, pale and stale,” it is quite another to conclude based on that that the judiciary is riddled with closet racists, homophobes and misogynists as a result.

None of this matters, of course, to activists who would simply reduce the legal profession and judiciary to its constituent elements of race and sex. Their end game, however, is not about greater equality or fairness or whatever other trendy legal cause célèbre arises; it is about their own power, self-aggrandizement and profit. The squeaky wheel gets the grease, but also the TV face time and lucrative government contracts.

Judges are not the victims in this instance. For better or for worse, they have largely insulated themselves from the slings and arrows of the rabble-rousers and society generally. Who suffers most is the communities activists purport to help. Underlying causes of criminal overrepresentation in black and indigenous communities are overlooked in favour of sexier, more profitable Band-Aid solutions.

It is an unfortunate trend among progressive organizations in which political opportunism trumps all. In the United States, the leading cause of death among African-Americans aged 15-34 is homicide, according to the Centre for Disease Control. Among all African-American homicide victims, 90 per cent are killed by other blacks. Last weekend, 11 people in Chicago — all black — were shot and killed, yet Black Lives Matters was elsewhere, disrupting yuppie food festivals and clambering for airtime on CNN. This is a crisis, and people are dying. The solutions will be complex and never complete, but surely a more diverse bench isn’t the first place the hard work should start.

Ultimately, if activists want to help their communities, they must focus less on cheap agitation and political stunts, and more on actually supporting those in need. There is no doubt room to improve our judicial system, but tokenizing those serving in it is not the way to do it. Promoting and sponsoring education, work training opportunities and self-respect, rather than treating communities as hapless minorities in need of a Svengali-like saviour, are key. Perhaps it means less screen time on the TV talk shops, but activists’ political opportunism must take a back seat to actually serving their communities.

Source: Allan Richarz: A more diverse bench isn’t the answer

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Census response rate is 98 per cent, early calculations show

2016/07/23 Leave a comment

Belies the points that the Conservatives made to justify replacing the Census with the National Household Survey:

Canadians really were, it seems, enthusiastic about the census.

Statistics Canada is still calculating exact response rates, but it says early indications are that the overall response rate is 98 per cent – and about 96 per cent for the long-form census. That is higher than long-form response rates in the previous two censuses, the agency says.

“Early indications are positive,” Marc Hamel, director-general of the census program, said in an interview.

These numbers could shift up or down as results from early enumeration of Northern communities, late filers and First Nations reserves are added in, he said. “The range of error is not very high … it’s likely to move, but we’re talking most likely, at most, one percentage point.”

The census, conducted every five years, is a massive undertaking. The budget for the current census is $715.2-million and involves the temporary hiring of more than 35,000 people.

The sample size for the long-form census was increased to one in four households this year from one in five in 2006. The combination of high response rates this year and a bigger sample size will yield “incredibly precise data,” chief statistician Wayne Smith said.

He called this “probably the most successful census since 1666,” the year of the first census in what became Canada – when 3,215 inhabitants (of European background) were enumerated.

Still, there have been wrinkles – among them, Fort McMurray, Alta. The census was suspended there in May after a wildfire caused a citywide evacuation. As a result, Statscan may use administrative data (such as tax and migration records) to calculate a population count, and is still determining whether there’s time to have residents complete the long-form census so that their responses will be included in the census’s main database.

The goal is to have a portrait of the city as it was on May 1 – just before the wildfire, Mr. Hamel said.

There have been other challenges. He said some people had privacy concerns about filling out the forms online. A help line fielded more than one million calls from the public on questions such as how information will be protected.

Statscan produces two sets of response rates for the census – the initial collection rate (which should be officially tallied by September) and the final response rate, which is slightly lower as forms with too few answers are discounted. In 2006, Statscan did not produce a long-form collection response rate. But it says the final 2006 response rate was 93.8 per cent, while in 2011, when the long form was changed to a voluntary household survey, the rate was 68.6 per cent.

“From experience, the difference between the collection and final rate has always been less than one percentage point,” Statscan said. “Given this, it is safe to conclude that the 2016 rate for the long form, although not final yet, will surpass the rate for 2006.”

Source: Census response rate is 98 per cent, early calculations show – The Globe and Mail

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Trudeau faces diversity challenge in Supreme Court judge selection

2016/07/22 Leave a comment

Interesting comment about the small ‘pipeline’ of potential visible minority and Indigenous judges bequeathed by the previous government (for my analysis of judicial and other diversity, see my free download in iPad/Mac version (iBooks) and Windows (pdf) Version)::

In Prime Minister Justin Trudeau’s first chance to name a judge to the Supreme Court of Canada, the search for diversity is bumping up against the reality of limited choices – raising the odds that a government that chose just three white males in its first 15 judicial appointments will pick one for the country’s most powerful court.

Mr. Trudeau has an opportunity to make a historic mark. If he names a woman for the job that comes open in September, he would give the court the first female majority in its 141-year history. If he names a member of a visible minority or an indigenous judge, that, too, would be a first for the court.

His Liberal government has left little doubt that it would like to find a well-qualified candidate from one of those groups.

“If it’s possible, they’re going to give it to a female, bilingual, visible minority – if they can find that person,” a Liberal party insider said.

But the search is proving to be a challenge. The opening comes with the upcoming retirement of Justice Thomas Cromwell of Nova Scotia and convention dictates that his successor must come from Atlantic Canada. The Prime Minister’s insistence that new appointees to the country’s highest court be functionally bilingual limits his choices further.

And there are no obvious bilingual stars among women on the region’s appeal courts (the most frequent source of Supreme Court judges) and in its law firms, more than a dozen legal observers in Atlantic Canada said in interviews. As for visible minority or indigenous judges, the pipeline was left largely empty by the former Conservative government.

And so Mr. Trudeau’s attention may yet turn to white males. Among the leading candidates in that category are Justice Marc Richard of the New Brunswick Court of Appeal and Chief Justice Michael MacDonald of the Nova Scotia Court of Appeal.

Source: Trudeau faces diversity challenge in Supreme Court judge selection – The Globe and Mail

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