Liberals’ judge selection has new bias, lawyers association says

Some valid concerns regarding diversity of experience and practice – in meeting the needs for  “identity” aspects of diversity, necessary to think also about these other aspects:

After appointing five women and no men to the bench in the Maritimes, the Liberal government is being told its commitment to diversity has a large blind spot – but not over the gender issue.

The Liberal government stressed diversity in launching a new process for appointing judges in October, 2016. For the first time, applicants are being asked about their race, gender identity, Indigenous status, sexual orientation and physical disability. Members of the committees that screen candidates are receiving training in “unconscious bias.”

Three of the five appointees in the Maritimes since then specialized in insurance law when they were lawyers, the Atlantic Provinces Trial Lawyers Association said in an open letter to federal Justice Minister Jody Wilson-Raybould on Wednesday. And all three worked for the same regional law firm, Stewart McKelvey.

“Their background is representing insurance companies in personal injury claims against the average Joe,” said Brian Hebert, president of the Atlantic lawyers association. “We’re hoping this isn’t a trend.”

In Prince Edward Island, six of the eight sitting judges on the Supreme Court and the Court of Appeal are from Stewart McKelvey. The Globe and Mail attempted to reach the managing partner of the firm’s Charlottetown office, and other managing partners, without success.

The Atlantic lawyers’ group represents plaintiffs in personal-injury cases – that is, individuals who in many cases sue insurance companies. “We represent the average person who has to fight insurance companies,” Mr. Hebert said.

“It’s a concern when we see judges being appointed from the same practice background, because we believe that as lawyers, we’re human, we’re influenced by our clients that we serve day-in, day-out, the culture of the firm that we’re in, the type of law that we practice.”

A spokesman for the Justice Minister said that only two of 12 judges appointed in Atlantic Canada since the Liberals took office in 2015 – a slightly different time-frame from the one referred to in the lawyers’ group letter – were, at the time of their appointment, with Stewart McKelvey.

“Minister Wilson-Raybould’s appointments in Atlantic Canada and throughout the country are based entirely on merit,” the spokesman, Dave Taylor, said in an e-mail.

“They respond to the needs of the courts, as identified through close consultation with Chief Justices. … The minister has been proud to appoint such outstanding candidates to the bench, as our government works toward building a judiciary that fully reflects the country it serves.”

Mr. Hebert said the appointees are highly qualified and he is not critical of the quality of appointments. Nor is his group critical of the lack of men appointed under the new process.

Christa Brothers, a former partner at Stewart McKelvey, was appointed to the Supreme Court of Nova Scotia in July; Tracey Clements, a partner at the same firm in Charlottetown, was named to the PEI Supreme Court in March; and Chantal Daigle, who chaired the recruitment office for the Saint John office of Stewart McKelvey from 2013-15, and who became a partner in 2004, was appointed last week to the Family Division of the New Brunswick Court of Queen’s Bench, after a year as case management master of that same court.

The other two appointees were not from law firms. One was a long-time provincial court judge promoted to the appeal court in Nova Scotia and the other was a lawyer from the Antigonish Legal Aid Office named to Nova Scotia’s Supreme Court.

“The reason we want women on the bench,” Mr. Hebert said, “is so that when women’s issues are before the court, or when women appear in court, there is a balancing of views. Same thing with race or other areas where we would want diversity. What we’re saying is the same considerations apply when you’re talking about the professional background of lawyers that are on the bench. There has to be a balance between the large-firm, insurance defence lawyers and other lawyers who are fighting for the rights of plaintiffs.”

In its letter, the association said a more diverse judiciary will bring “varied perspectives to the development of the law and the concept of justice itself.” 

Source: Liberals’ judge selection has new bias, lawyers association says – The Globe and Mail

Liberals reshape judicial bench with appointments of women

The Globe finally catches up to the story of the increased diversity of the government’s judicial appointments, almost exclusively focussing on gender with only cursory reference to the increased number of visible minority (8.5 percent) and indigenous (5.1 percent) judicial appointments (after Thursday’s latest batch of appointments).

The Globe also misses another key aspect: the increased diversity in the Judicial Appointments Advisory Councils named to date: 62.9 percent women, 11.4 percent visible minorities, and 10.0 percent Indigenous peoples:

The Liberal government is reshaping the bench, appointing a substantial majority of women, even though they make up a minority of applicants. The approach is winning praise from some in the legal community, while sparking concern about “quotas” from others.

A year and a half after taking office, the government has appointed 56 judges, of whom 33 are women – 59 per cent. Yet women make up only 42 per cent of the 795 people who have applied to be judges since the Liberals put in place a new appointment process in October.

Making federal institutions more reflective of Canadian diversity has been a theme of the Liberal government. Its cabinet has an equal number of men and women, and it announced a plan last week to ensure more women and minorities are named to federally funded research chair positions at universities.

Justice Minister Jody Wilson-Raybould says a more diverse bench will build the public’s confidence in the judiciary. “We are beginning to demonstrate how it is possible to have a bench that truly reflects the country we live in,” she said in an e-mail to The Globe and Mail.

But some in the legal community question the government’s commitment to the merit principle in appointing judges to federally appointed courts, which includes the superior courts of provinces, the Federal Court and Tax Court.

“I’m not really in favour of a quota system – those are alarming discrepancies,” Brenda Noble, a veteran family lawyer in Saint John, said in an interview, referring to the gap between female appointees and applicants. “You want to have the best people in the job.”

Ian Holloway, the University of Calgary’s law dean, said it is hard to fault the government for increasing the proportion of women judges. Even so, he said he worries the government is putting too much emphasis on gender.

“In the old days, it was offensive that people got judgeships just because they were Liberals or Tories. That helped breed contempt for the judiciary. What we don’t want to do is replicate that in a different form.”

But others say the government is doing the right thing.

Brenda Hildebrandt, a Saskatoon lawyer and governing member of the Saskatchewan Law Society, was pleased. “Do I think it’s a good thing women are more represented on the bench? Yes, I do, and I would hope that those are qualified candidates and that the fact that they’re women is just one consideration, albeit important.”

Rosemary Cairns Way, a University of Ottawa law professor who has studied diversity on federally appointed courts, supports the government’s move as a way of achieving gender parity. “When there is no shortage of meritorious candidates, it seems to me the government can legitimately choose judges who, in addition to being independently qualified, will fulfill other institutional goals such as a more diverse and gender-balanced bench.”

When the Liberals took office, 35 per cent of the federal judiciary (full-time and semi-retired) were women, according to the Office of the Commissioner for Federal Judicial Affairs. Given a similar time frame to the Conservatives – a decade in office – the Liberals would ultimately put women in the majority among the full-time federal judiciary if they maintain the current ratio of appointments. The previous government appointed more than 600 full-time federal judges, 30 per cent of them women; women also made up 30 per cent of applicants during the Conservatives’ years in office.

The government’s emphasis on creating a bench more reflective of Canada’s diversity does not extend quite as much to racial minorities as it does to women. However, there are at least seven visible minorities among the new appointees – two of Indigenous ancestry, three of South Asian background, one Japanese-Canadian and one Chinese-Canadian.

The Liberals have authorized the judicial-affairs commissioner to collect, for the first time, data on race, Indigenous status, gender identity, sexual orientation and physical disability of applicants and appointees. But the office would not release those numbers to The Globe and Mail for this story, saying it is still preparing the data and it intends to publish them soon.

The Globe asked Ms. Wilson-Raybould whether she has a numerical target for the appointment of women to the federal judiciary. She replied that the government appoints judges based on merit and the needs of the court. “In assessing merit, I do not discriminate against applicants based on their gender, ethnic or cultural background,” she said in an e-mail.

She acknowledged that the pace of racial-minority appointments is lagging and suggested the problem is a lack of minorities in the legal profession.

“We know that more needs to be done to increase the number of visible minorities in our law schools. As that happens, the face of the profession will change and evolve to better reflect the rest of the population.”

Rob Nicholson, a former Conservative justice minister, and the party’s current justice critic, said his chief concern is that qualified people be appointed. “If it’s 55-per-cent women and 45-per-cent men, as long as we get qualified people for this,” he said.

Source: Liberals reshape judicial bench with appointments of women – The Globe and Mail

Judge shortage causing unnecessary legal trauma: MacKay

While MacKay is right to criticize the government for its delay in appointing judges, his assertion that under the Conservative government ‘s, “We appointed a judiciary that represented “the face of Canada,” a diverse bench predicated and built on inclusion of all races, creeds, and genders in the legal community across Canada” is false as shown in my 2016 analysis: Diversity among federal and provincial judges – Policy Options).

In contrast, appointments to date of the current government show a marked increase: 57.4 percent women, 6.4 percent for each of visible minorities and Indigenous peoples.

The federal government has a fundamental responsibility to appoint a sufficient complement of judges such that our courts can function properly. Its failure in that regard creates a constitutional crisis that goes to the very rule of law that underpins our justice system.

A lack of judicial appointments in the context of increasing pressure to conduct timely trials equals a systemic miscarriage of justice. With caseloads where they are, the system is at its breaking point.

Add to this difficult dynamic the recent Supreme Court of Canada ruling in the R v Jordan decision, which mandates criminal trials must be heard within 18 months for the so-called lower courts, and 30 months for the Superior ones. Absent compelling circumstances, “delinquent” prosecution equals administrative dismissal.

Due to this artificial prescription dozens of cases have been tossed, including murder and sex assault cases. No trial. No verdict. Worse still, the victims and their families are left without recourse or remediation and no one is accountable. Not fully appreciated as yet, this jarring situation stands to worsen due to the arbitrary deadline, which provides no consideration for the seriousness of the offence.

Against this backdrop we note inertia from the federal government on the appointment of judges to hear these languishing cases. Canadians face an alarming scenario of serious violent charges being vacated due to the acute shortage of judges. “Justice delayed is justice denied” is a maxim never more appropriately invoked than now.

As minister of justice (2013-15) I oversaw the appointment of more than 230 judges; prior to that my government prioritized hundreds more. We appointed a judiciary that represented “the face of Canada,” a diverse bench predicated and built on inclusion of all races, creeds, and genders in the legal community across Canada.

Vacancies on the federally appointed bench is at an all-time high. Sixty-two empty seats of the 840 federally appointed judges, against 14 (the lowest in decades) when my government left office. In June 2015, we appointed a record 22 women: over 60 per cent of the judges appointed on that occasion. We appointed more judges on one day (43) than the current government has in 16 months in office.

Source: Judge shortage causing unnecessary legal trauma: MacKay | Toronto Star

Appointment of Mi’kmaq, black women to Nova Scotia courts ‘a huge step’

As the federal government increases the diversity of its judicial appointments (Justice minister announces 24 new judges in effort to end national shortage), interesting to see watch provincial announcements and the degree to which they are reported on:

Nova Scotia has appointed the first Mi’kmaq woman and the third black woman to the provincial and family courts, in what the province’s Premier calls a “huge step forward” for ethnic diversity on the bench.

Legal aid lawyer Catherine Benton becomes only the third aboriginal judge in Nova Scotia, while Ronda van der Hoek, a public prosecutor, joins two

other black women – Corinne Sparks and Jean Whalen – among the 73 full-time judges in the province.

Premier Stephen McNeil said in an interview the two new judges will provide added perspectives from the black and indigenous population in a court system that needs to reflect the makeup of the general population.

“I believe this is a huge step forward. They have had distinguished careers in making sure minority voices are being heard, that Mi’kmaq rights are being protected, and their cultures will be reflected in the decisions they make,” he said.

Justice Benton is well known within legal circles as an advocate for racial and ethnic diversity in the courts, having pushed from the earliest days of her career for a stronger role for indigenous lawyers in the court system.

She worked as a researcher with the Union of Nova Scotia Indians and the Mi’kmaq Grand Council before getting her law degree from Dalhousie in 1993.

In 1994, Justice Benton told the aboriginal publication Windspeaker she had made a series of fruitless job applications to firms around Atlantic Canada, with some partners telling her they felt her knowledge of aboriginal law wouldn’t be an asset.

“I think it’s important to establish an aboriginal justice network,” she told the publication.

Naiomi Metallic, a teacher specialized in indigenous law at Dalhousie’s Schulich law school, says the appointments are being greeted with delight among advocates for greater indigenous and black representation in the legal system.

“I’m elated … We’ve been saying in the media there needs to be more diverse appointments and it appears that hasn’t fallen on deaf ears,” she said.

Justice van der Hoek, from Windsor, has practised law for 19 years and also worked with Nova Scotia Legal Aid in Windsor and Halifax after graduating from Dalhousie Law School.

She is the third black judge in the province’s lower and superior courts.

Justice Van der Hoek and Justice Benton also bring the family and provincial courts a step closer to gender parity, with a total of 15 full-time female judges, compared to 20 full-time, male judges.

Source: Appointment of Mi’kmaq, black women to Nova Scotia courts ‘a huge step’ – The Globe and Mail

Reforms to the Superior Courts Judicial Appointments Process: Diversity element

The operative paragraph on diversity, including reporting:

To promote diversity, the new JACs will be mandated with identifying outstanding jurists from a wide range of backgrounds and practice areas, with a view to having a judiciary that reflects the diversity of Canadian society. JACs will be supported in this task by the diversity-related training provided to members noted above. The collection and publication of statistical data on judicial applicants and appointees will provide transparency and enhance accountability with respect to progress towards a more diverse bench.

Source: Reforms to the Superior Courts Judicial Appointments Process – Canada News Centre

Justice minister announces 24 new judges in effort to end national shortage

Finally, the announcement of the new process for selecting federally-appointed judges. No real surprise given the ministerial mandates letters. Still nothing (yet) and regular reporting:

The Liberal government has announced a new judicial appointment process that emphasizes gender and racial diversity.

One of the key changes unveiled on Thursday specifies that governments and independent legal groups that pick the members of the committees that screen candidates “will be asked to take into account the need to ensure [the committees] are representative of the diversity of Canada,” according to a justice department backgrounder. All members of the screening committees will get training on diversity, unconscious bias and assessment of merit, the backgrounder says. A federal agency will keep track of the demographic makeup of applicants. Until now, applications have been tabulated only by gender, not race.

As part of the process, applicants will have to fill out more detailed application forms than they do now. In these forms, applicants will detail their abilities in Canada’s two official languages, and they may be tested on their proficiency.

Another set of modifications will undo changes the Harper government made to the process. The Conservatives had put a police representative on the judicial advisory committees that screen judges for federally appointed courts (such as provincial superior courts, the Federal Court and Tax Court). They had also taken away the vote of a judge on those committees, which had given the federal appointees a voting majority. And the Conservatives had taken away the judicial advisory committees’ ability to “highly recommend” applicants; they could only recommend (or not). The government will remove the police representative, return the vote to the judge and re-establish the “highly recommended” category.

Applicants who applied under the previous process will have to re-apply, but on Thursday, the government announced the appointments of 24 judges under the existing process.

The Liberals have come under fire from the legal community because they appointed just 15 judges in their first year in power, during which judicial vacancies reached 61. That’s more than at any time during Stephen Harper’s decade in power, records show. When Mr. Harper stopped appointing judges in the summer of 2015, before the federal election, there were a little more than a dozen vacancies.

Backlogs in criminal, civil and family cases have risen in some provinces, especially in Alberta and Nova Scotia.

Source: http://www.theglobeandmail.com/news/national/liberals-to-unveil-new-judicial-appointment-process-undo-changes-made-by-harper/article32454733/

And the announcement of 24 judicial appointments:

After months of criticism for not acting fast enough to appoint much-needed judges across the country, Justice Minister Jody Wilson-Raybould announced 24 judicial appointments Thursday.

“We have moved to fill urgent judicial vacancies by drawing on existing lists of recommended candidates,” the minister said in a statement. “The government is confident in the outstanding quality of these appointees and their dedication to delivering just outcomes for Canadians.”

Justice system can’t wait for judicial appointments review, say judges

Trudeau government has backlog of more than 300 appointments

Of the 24 new appointees, 14 are women and two are Indigenous. (No visible minorities are mentioned but need to doublecheck).

Source: Justice minister announces 24 new judges in effort to end national shortage

And for the list (I will be doing an analysis later as am travelling):

Source: http://news.gc.ca/web/article-en.do?nid=1140619 (separate links by Federal Court and Provincial Courts)

How Trudeau can bring diversity to Supreme Court: Ranjan Agarwal

Some good practical suggestions. The ones I favour include publishing the demographics of applicants and focussing efforts on improving the diversity of other judicial level appointments, where the potential pool is larger.

The easing of the official languages requirement is a non-starter, so those with judicial ambitions should make knowledge of both official languages part of their education.

Needless to say – but I keep saying it – the Office of the Commissioner for Federal Judicial Affairs Canada should include in its reporting, the number of visible minority and Indigenous judges, not just women:

So, can this missed opportunity be salvaged? Yes, if the prime minister takes four steps.

First, he should make clear that Justice Rowe was appointed because he was the best Canadian for the job, not the best Atlantic Canadian. In doing so, he would affirm that his next appointment in September 2018 does not have to be from British Columbia (since Chief Justice Beverly McLachlin, who will retire then, notionally holds that seat on the Court), leaving open the possibility of appointing an aboriginal or minority judge from outside B.C.

In particular, the current convention does not allow for the appointment of a Northern Canadian, even though the courts in the territories are some of the most diverse in Canada.

Second, the prime minister should publish demographic statistics of the applicants for this appointment. How many women applied? Self-identified minorities? Aboriginals? Non-Atlantic Canadians? How many judges? How many lawyers? The problem with promising diverse appointments is that the talent pool at the senior levels of the bar or on the trial and appeal benches may simply not be there. Demographic statistics allow the government and the legal profession to consider where more work must be done to create a pool of good, diverse candidates.

Third, the prime minister should revisit (though not necessarily reconsider) the “functional bilingualism” requirement. Potential applicants have two years to immerse themselves in French-language training. But the government should test whether the bilingualism requirement had a disproportionate impact on aboriginal and immigrant communities, where French-language education may not have been a priority for their parents.

Finally, the prime minister should disproportionally fill the 60 other judicial vacancies with qualified women, aboriginal and minority judges. A more diverse Supreme Court is, in many ways, symbolic. The real work of the justice system happens in our trial courts — that may be the only interaction many Canadians have with a judge.

After every hearing, the Court’s justices gather over lunch to discuss their views on the appeal. The appointment of Bertha Wilson in 1982 surely changed the discussion around that table about many issues, including perhaps most importantly abortion, gender rights and spousal abuse.

The appointment of an aboriginal or minority judge will have the same impact, providing a much needed perspective on novel issues facing an increasingly diverse Canada and in an age of truth and reconciliation. Our justice system is the finest the world has ever known. But, sometimes, not only must justice be done, it must also be seen to be done.

Source: How Trudeau can bring diversity to Supreme Court | Toronto Star

Advocates for minority Supreme Court judge disappointed by Trudeau’s pick

Understandable reactions but equally understandable that the government chose to give priority to regional representation and bilingualism.

However, it will be more important to assess the diversity of future appointments to the lower courts, which I expect will include visible minorities and Indigenous peoples (as did with the initial 15 appointments).

And nice to see my IRPP article, Diversity among federal and provincial judges – Policy Options,  continues to provide useful background data:

The Liberal government may have made history by nominating a Newfoundlander to Canada’s top court — but disappointed advocates say a more critical opportunity has been missed to add racial diversity to Canada’s predominantly white judiciary.

“It’s another white male . . . It’s the exact thing we’ve been doing for years,” said Koren Lightening-Earle, president of the Indigenous Bar Association, adding she would have been “borderline happy with any person of colour.”

Prime Minister Justin Trudeau announced Monday that Justice Malcolm Rowe from Newfoundland and Labrador has been nominated for the Supreme Court of Canada. If formally named to the court, it will be a historic first for the province.

However, scholars and aboriginal jurists had hoped Trudeau’s new selection process might set aside the constitutional convention of regionally based appointments, and focus on putting an aboriginal or black judge into the job.

Lightening-Earle said while Newfoundlanders and Labradorians have waited a number of decades for a representative on the court, aboriginal Canadians have deeper historic claims to a place in the judiciary.

“They (Newfoundland and Labrador residents) have been waiting a long time, but we’ve been waiting a little bit longer,” she said.

Lightening-Earle said in a telephone interview a rare opportunity has been missed, and indigenous lawyers are wondering why they bothered applying to the government’s advisory board for the position.

A report in Policy Options magazine estimated earlier this year that just one per cent of Canada’s 2,160 judges in the provincial superior and lower courts are aboriginal, while 3 per cent are racial minorities — prompting a Dalhousie University law professor to describe the Canadian bench as a “judiciary of whiteness.”

Robert Wright, a black social worker who has served on a Nova Scotia board that recommends judicial appointments, said the announcement is a disappointment given the Trudeau government’s earlier signals it might adjust the system.

“There are an increasing number of Canadians who . . . are not caught up in what I call the historical regional nature of the various Canadian identities we used to focus on,” he said in a telephone interview from Halifax.

Wright argues the principle of diversity that lies beneath appointing people from different regions needed to be shifted to recognize the increasing number of Canadians from diverse ethnic and racial backgrounds.

He said as a black Nova Scotian he would have been content to see a black person from any part of the country elevated to the bench, and he also would have been very pleased if an aboriginal judge was appointed.

Wright and Lightening-Earle say the country is losing out on the opportunity to gain from indigenous perspectives on everything from constitutional issues to sentencing to the factors that lead to crime.

Jeffery Hewitt, a legal scholar at the University of Windsor, said he doesn’t accept arguments that there may be a lack of qualified candidates.

“Tell us who applied. Give us the list. Talk to us about . . . whether there were any indigenous people in there?” said Hewitt, a Cree who has provided legal advice to First Nations.

A spokeswoman for the federal Justice Department said the independent advisory board that recommends candidates to the prime minister’s office “will be reporting on this information one month from (an) appointment.”

Hewitt said he’s hopeful that going forward, the Liberals will make more appointments to the superior courts in the provinces.

In Quebec, the Policy Options study noted three visible minority judges out of more than 500, despite bar society figures showing more than 1,800 of its roughly 25,000 lawyers identify themselves as being from visible minority groups. The province said it doesn’t keep figures.

In Ontario, one of the few provinces where the judicial advisory body keeps figures on the lower court appointments, there were 24 visible minority judges out of 334 judges, even though one quarter of the province’s overall population identifies as a visible minority.

There are no visible minorities on the bench in Newfoundland and Labrador, which by constitutional convention was the likeliest province to be tapped for the next Supreme Court of Canada appointment.

Source: Advocates for minority Supreme Court judge disappointed by Trudeau’s pick | Toronto Star

‘There seems to be a paralysis’: Trudeau government has backlog of more than 300 appointments

Almost a year in, one would expect more vacancies to have been filled, given the overall policy – greater diversity – is clear. But I can also see the wish to ensure that the details of the policy and its implementation are addressed first.

One of the key things to look for is the degree of transparency in political appointments, with comparable employment equity reporting to the public service and federally-regulated sectors (telecoms, banking, transport). Currently for judges, only gender is tracked. For other GiC appointments, while gender has been tracked comprehensively for 25 years (as has official languages), there has been little systemic tracking of the other groups (visible minorities, Indigenous peoples, persons with disabilities).

And in some cases, there has been backsliding: the GiC appointment index (top view) has less information than previously, requiring more looking at the individual organizations than before.

For my baseline study, see my short ebook, “Because it’s 2015 …” Implementing Diversity and Inclusion, available either in an iPad/Mac version (iBooks) or Windows (pdf) Version.

Prime Minister Justin Trudeau and his cabinet have accumulated a backlog of more than 300 appointments that are due to be filled, a CBC News investigation has found.

Almost 20 per cent of governor in council (GIC) appointments, which include roles with Crown corporations, port authorities, agencies and tribunals, are currently vacant or occupied by a Conservative appointee whose term is past its expiry date.

Overall, 170 GIC positions are listed as vacant. Another 116 are past their appointment’s expiry date but the incumbent has been allowed to remain in the role until he or she is either replaced or renewed.

Currently, 61 federally appointed judge positions are vacant, including one seat on the Supreme Court of Canada.

In the Senate, 20 per cent of the 105 seats are empty. The government has pledged to fill the 21 spots “by the end of the year.” Three more senators are due to retire in January.

Taking a toll

In some cases, incumbents have been temporarily renewed only a day or two before their appointments were set to expire because the government had not yet launched the process to find a replacement.

For example, Graham Fraser’s appointment as commissioner of official languages, which was set to expire Sunday, was extended Thursday for two months. The government has yet to issue a job posting to find his successor.

The backlog has taken a toll on the operations of some boards and government bodies.

The CRTC hasn’t been able to hold a planned hearing on French music since November because it doesn’t have the necessary three French-speaking commissioners.

The parole board, where 21 per cent of positions are currently vacant, says it’s being stretched, with its remaining part-time board members putting in additional hours to ensure the work is done.

Alberta judges warned a Senate committee in late September that the 61 vacant judge positions could affect court proceedings, saying the province’s justice system is so backlogged they are now setting trial dates for 2018. Last week, an Edmonton judge stayed a murder charge against Lance Matthew Regan, citing delays in bringing the case to trial caused in part by the backlog in Alberta’s justice system.

‘Overwhelmed’

Liberal government insiders privately point to the Prime Minister’s Office and the Privy Council Office as the source of the problem, saying “the centre” has been “overwhelmed.”

The government is confident the problem will be resolved soon. It says the backlog was caused in part by the decision to overhaul the appointments process and bring in a more open, balanced, merit-based system. The new system is now up and running and vacancies are being filled, officials say.

Source: ‘There seems to be a paralysis’: Trudeau government has backlog of more than 300 appointments – Politics – CBC News

Sean Fine of the Globe focusses on the impact on the court system:

While Prime Minister Justin Trudeau is considering his first appointment to the Supreme Court of Canada – a vacancy became available on Sept. 1 – the shortage of lower-court judges may make it difficult for some jurisdictions to meet constitutional guarantees of timely criminal trials.

In July, the Supreme Court of Canada set a deadline of 30 months in superior courts (such as the Court of Queen’s Bench) from the time a charge is laid until the trial is completed. In Calgary, the wait is now just short of 15 months – 63 weeks – to schedule a trial of five days or more. (It can take months from the time a charge is laid until a trial is scheduled.) The situation is about the same in Nova Scotia, where the Supreme Court is now booking criminal trials of five days or more for next fall.

Civil trials, too, face long delays, which Chief Justice Wittmann said is especially hard on families seeking resolutions to legal problems. The lead time to schedule a civil or family trial of five days or more in the Court of Queen’s Bench in Calgary is now 138 weeks – bookings are being accepted for April, 2019. The Court of Queen’s Bench is Alberta’s top trial court, and it has seven vacancies and 59 full-time judges in office, according to the Office of the Commissioner for Federal Judicial Affairs. The province’s Court of Appeal has two vacancies and 12 full-time judges in office.

In Nova Scotia, the Supreme Court (the top trial court) has five vacancies and 31 full-time judges in office. The Court of Appeal has one vacancy and seven judges in office.

“On rare occasions in the past we’ve had to cancel matters. However, this is the first time we’ve had to send out multiple letters the month before suggesting that trial dates be rescheduled due to the shortage of judges,” Jennifer Stairs, the communications director for the Nova Scotia judiciary, told The Globe in an e-mail.

“That’s very difficult on the lawyers and on the litigants who are anxious to have their matters heard.”

B.C. has eight vacancies and 82 judges in office on its Supreme Court, and three open spots and 12 judges in office on its appeal court. Five-day criminal trials are available in January, 2017, while five-day civil trials, other than motor-vehicle actions, can be booked from August, 2017, onward. Dates for five-day motor-vehicle action trials are fully booked for the next 18 months, according to Superior Courts communications officer Bruce Cohen.

The Canadian Bar Association, representing the country’s legal profession, is also upset at the delays in appointing judges.

“We are very concerned. Ongoing judicial vacancies have created significant delays in the court system. These delays have a serious impact on separating families and their children, on criminal justice, on business in Canada,” CBA president René Basque said in an e-mail.

Canadian courts languish as vacancies on bench remain unfilled

More indigenous judges needed in lower courts to develop skills for Supreme Court: Beverley Mclachlan interview

Valid points and hence the focus should be more on the yet to be formalized new process to appoint federally-appointed judges that better reflect Canada’s diversity, and the actual implementation by the government (for those who missed my analysis of the current baseline, see my Diversity among federal and provincial judges – Policy Options):

Canada’s top judge says the best way to one day see an aboriginal person named to the Supreme Court of Canada is for governments to appoint more indigenous judges to lower courts.

In an exclusive interview with the Star, Chief Justice Beverley McLachlin said the country’s highest court requires high-level judging and “considerable” judicial experience, and while she welcomes ethnic diversity and more aboriginal judges in the system, she suggested they must work their way up.

She said the challenge for aboriginal aspirants to the high court is the same that women faced three or four decades ago when there were “virtually no women on the bench. And so how did the government go about changing that to the point now where we’re four women on the Supreme Court of Canada? They started appointing people at the trial level.

“But the difficulty we have with racial minorities, indigenous people is that we’re just beginning this process of getting the judges in place on the trial benches and so on.”

The federal government has launched a new judicial selection process, striking an independent advisory board to recommend candidates to fill the top court vacancy announced in March by retiring Justice Thomas Cromwell, of Nova Scotia, who steps down at the end of August.

Trudeau wants the seven-member advisory board to recommend jurists “of the highest calibre” who must be functionally bilingual and “representative of the diversity” of Canada.

The new process has again shone a light on the lack of diversity in Canada’s judicial ranks.

McLachlin was consulted by the government as it devised the new selection process. She will also be consulted by the advisory board as it canvasses for Cromwell’s replacement. She was careful not to express an opinion on the government’s changes, saying reforms to judicial selection for greater transparency have been an ongoing project, and it is up to the government to set its criteria, including the bilingualism requirement. “I’m not about to comment on that because it’s not my business.”

 However, she did endorse the functional bilingualism prerequisite as “desirable” even though she herself was not fully, functionally bilingual when first appointed in 1989 to the Supreme Court of Canada by then-Prime Minister Brian Mulroney. That came after she actually started working in the law in French, she said.

Most of the judges at the top court are “completely bilingual now and those who might lack something are working very hard to improve their skill and the court works very well this way,” she said.

“Let me put it this way. It’s possible for the court to function without everyone being bilingual. We’ve done it in the past and I think we’ve done our job well. However, I believe that functional bilingualism is very helpful and desirable.”

But the question of diversity on the court is more complicated.

McLachlin pointed to her own experience. She was first appointed to the County Court of Vancouver “where I thought maybe that’s where I’d spend the rest of my days. And then I worked my way up through the trial court and through the court of appeal, and finally to the Supreme Court of Canada.”

Now women make up about 35 per cent of Canadian judges, she said. “We’ve been able to achieve a significant measure of diversity on the gender front and,” she stressed, “have judges who are reflective of this high calibre of judicial experience, intellectual experience and judgment and familiarity with the law and judging. So we’ve been able to have it all.”

McLachlin is encouraged by “a host of very accomplished indigenous lawyers and professors” who she said are the result of proactive programs in law schools and universities and better educational standards. However, she did not suggest any of those are in a position to be vaulted onto the top bench from the bar, as has been the case with some Supreme Court judges in the past: Suzanne Côté, Ian Binnie, John Sopinka.

Asked if there are any current sitting aboriginal judges that could sit on the high court, McLachlin dodged.

“I can’t say; I haven’t done a survey. We’ll see who applies, and what comes of it.”

Source: More indigenous judges needed in lower courts to develop skills for Supreme Court: Beverley McLachlin | Toronto Star