Overcoming the diversity deficit on federal courts

Actually, compared to the previous Conservative government, the record in federal judicial appointments to the federal and provincial courts is strong:: 56.2% women compared to 35.6%, 7.8% vismin compared to 2%, 2.8% Indigenous compared to 0.8%.

I sometimes question whether advocates for increased representation have looked at the data before asserting that more needs to be done.

And yes, more should be done to encourage more lawyers from minorities to submit their names along with other efforts and it should be possible to learn from the experience of the last 5 years:

Federal justice minister David Lametti knows that the federally-appointed bench isn’t diversifying quickly enough, and he’s vowing to do something about it.

“It is going in the right direction, I’m pleased at the direction in which it’s going,” says Lametti. “Is there more work to do? Absolutely. We need to make more good appointments, but I think we’re doing a decent job, and we’re getting better at it, and hopefully it will continue to improve over time.”

But merely calling on lawyers from under-represented groups — BIPOC [Black, Indigenous, People of Colour], women and the LGBT community — to put their names forward hasn’t been doing the trick. Members of legal organizations representing diversity on the bar say that this approach may have run its course.

“If you just keep doing things the same old way, they’re clearly not reaching people and then people aren’t applying,” says Brad Regehr, president of the Canadian Bar Association, and a member of the Peter Ballantyne Cree Nation in Saskatchewan, who is based in Winnipeg. “It’s going to take some innovation in terms of reaching people.”

There is ample evidence that women and other minorities will self-select themselves out of an application process for a position on the bench because they don’t feel that they could be chosen based on the established profile of the judiciary, which makes the notion of application problematic.

“We know that people’s sense of how qualified they are varies according to gender and racialization, and other experiences that people may have had,” says Martha Jackman, a law professor at the University of Ottawa, and co-chair of the National Association of Women and the Law (NAWL).

“To apply, by definition, you have to think that you’re qualified. But you also have to feel like you’re appointable, and there are many qualified applicants that may well understand that they are extremely meritorious – even more meritorious than others – but they have a strong sense, that is probably accurate, that they won’t be appointed, so they don’t apply,” says Jackman. “There is a typical profile for who is appointed.”

Lori Anne Thomas, president of the Canadian Association of Black Lawyers, agrees that people who don’t see themselves on the bench will avoid applying. “Why put yourself through the torture for a job that’s probably not going to happen?” asks Thomas.

Both Thomas and Jackman also point to how opaque the federal application process can be, making it another barrier for application.

“You’re applying for a position that may or may not exist,” says Thomas. “You’ll never know when the decision will be made, and as soon as the decision is made, you’re no longer a lawyer – you plan for a future that may never happen or can happen in the next minute. It’s a very odd situation.”

At least in the Ontario Court of Justice application process, Thomas notes, there are interviews that tell applicants they have reached that stage in the process. That doesn’t happen federally, and lawyers don’t necessarily have access to someone who has been through the process before to reassure them.

Thomas recommends that the government make the process “more transparent and welcoming to everybody who applies.”

“These are professional people, and if they have the qualifications, they should know where they are,” she says adding that it would be worthwhile for the Judicial Advisory Committee to take the time to offer some encouraging words not to give up.

According to Jackman, any systemically discriminatory forces at play in society and within the profession will be reflected and reinforced in an appointment process.

“I think there is a legitimate perception that this is an insider’s opaque process where there are certain individuals who already have a big head-start, and why would you bother?” she says.

Lametti says he’s aware that people will take themselves out of the running, and that the “process is onerous.” But for a reason: “It’s onerous because it’s introspective,” says Lametti. “Whatever the outcome, you actually understand yourself a whole lot better when you’re done, and it is an in-depth application process because we want people to realize that we want them to write about their experiences. We want them to tell us about what has made them unique, and that’s onerous. But if we were more superficial about it, […] we wouldn’t get the quality outcomes that we’re looking for.”

Lametti says that the government is making headway with its appointments. Of the 74 appointments made since the October 2019 election, 44 have been women, two have been Indigenous, 14 were visible minorities, and six identified as LGBT. He hopes that record will help more lawyers from diverse backgrounds see themselves on the bench.

Thomas, however, is wary of the statistics that don’t differentiate Black appointments from other visible minorities.

“What they fail to understand is that people of colour and Black are not necessarily the same thing,” says Thomas. “Black people can be included in people of colour, but given that both Indigenous and Black persons are over-represented in the criminal justice system, when somebody who’s Black or Indigenous comes in and they see someone who is South Asian or Asian, that doesn’t make them feel that this person understands my lived experience.”

And what if, instead of waiting on people of diverse backgrounds to apply, the judicial advisory committees were to be more proactive in targeting lawyers by nominating them?

“Clearly, we are in a position where things have been done a certain way for a long time, and then we’re getting the complaint that people aren’t applying,” says Regehr. Then I say give it a try.”

According to Jackman, being tapped by someone in government will give the potential applicant the impression that they are qualified.

Thomas agrees that nominations are an idea to consider. “I can say that CABL has an open relationship with the federal government, as well as provincial governments, in terms of talking about these issues, but it is hard when the process is so difficult,” says Thomas.

It’s a fair point, says Lametti, but he doesn’t want to bring back nominations at the cost of ensuring that the process is transparent and fair.

“We’ve put in a variety of application processes to become transparent and fair, but every time I’m out since I became minister, in speaking to various parts of the legal community, I’ve told people to apply,” says Lametti. “I’ve told people not only to become judges, but to apply to be members of the JAC, because they are representative in their composition in order to get better readings of the files.”

Troy Riddell, a political science professor at the University of Guelph, who studies judicial appointments, says that the government could alleviate concerns around transparency by outlining a public list of criteria.

“As long as there was an understanding that, if the [Judicial Affairs] Commissioner’s office directly encouraged an application, that application would have to go through the same vetting process as other candidates, I would not see a problem with that approach,” says Riddell.

Lametti is also keen to emphasize the value of mentorship to get more diverse lawyers to apply to the bench.

“We all have a role to play, where you see good colleagues and you think ‘you really ought to do this. You should be thinking about this, and you should be preparing yourself to apply,’ or helping edit or draft the application, or giving feedback, or whatever,” says Lametti. “We all have an obligation to do that, and I think we’ll get a better bench if we do.”

Regehr agrees that reaching out and talking to lawyers about applying for the bench helps. But he also preaches tenacity. “Being a lawyer is a busy occupation,” he says. “Sometimes you’re getting 100 emails every day, and it gets buried. That can be part of the problem, too. It requires some rethinking in terms of how we advertise for these jobs, and how government and Judicial Affairs can reach out to people.”

Black and Indigenous professionals who have been elevated to the bench also have a role to play, says Thomas. But because there are so few of them, it can be a burden.

“It places a lot of the responsibility on associations such as ours, where we are trying to reach out to our membership and encourage them to apply,” she says. “But that’s from our point of view – not necessarily the judiciary or the federal government.” More outreach on their part “could be enough to encourage people to apply.”

Several legal groups have written letters to Lametti, calling on him to fill vacancies on the Federal Court with BIPOC judges, including the CBA. Only two currently sit on the court.

Lametti says that he hasn’t yet formally responded to the letters. However, he did want to set the record straight that candidates other than those seeking appointment to the Supreme Court of Canada need not be bilingual in both official languages.

“Bilingualism is an asset but is not a requirement or a baseline requirement for either the Federal Court judges or the federally-appointed superior court judges in Canada,” he says.

He also noted that federal judges often have to move to the Ottawa-Gatineau region. That, coupled with the subject-matter needs of the court, further complicate matters.

“The Federal Court has subject area jurisdiction in Indigenous matters, in administrative law, in intellectual property, as examples, and you do want people with expertise in those areas for those courts,” says Lametti. “That being said, we do our best to make sure that candidates from diverse backgrounds are considered for Federal Court appointments, and I think we’re getting better in that regard as well.”

Jackman notes that there will soon be two Ontario vacancies on the Supreme Court. There won’t be any excuse for passing over appointments from unrepresented groups, she says.

“There’s a burden of justification for both of those appointments,” says Jackman. “And there’s no possible explanation why the justice minister and the prime minister cannot appoint very meritorious individuals who have a lived experience that is different from the dominant culture.”

Source: Overcoming the diversity deficit on federal courts

Supreme Court’s chief justice calls for more diversity in Canada’s legal system

Of note even if the government has made considerable efforts to increase diversity of judicial appointments. My unofficial running total compared to the 2016 baseline:

Women Visible Minorities Indigenous
2016 Baseline 35.6% 2.0% 0.8%
New Appointments 56.2% 7.2% 2.9%

The Supreme Court’s chief justice is calling for more diversity in Canada’s legal system as protests mount around the world over anti-Black and anti-Indigenous racism.

During an end-of-session news conference in Ottawa today, Richard Wagner said the top court has wrestled with cases that have underscored racial bias and the use of degrading stereotypes — and that a lack of diversity in the justice system is part of the problem.

“All Canadians should be able to see themselves reflected in their justice system. Justice should not make a person feel like an outsider or an ‘other’ when they confront it,” he said.

“I also think there is a growing awareness of the need for our courts, including our highest court, to reflect the diversity of Canadians. I certainly would welcome the insights and perspectives this could bring.”

Canada’s judiciary has become more diverse, with more women, visible minorities, LBGT and Indigenous people on the bench, but the number of Indigenous judges remains low compared to other demographic groups.

No Indigenous justice has ever been appointed to the Supreme Court of Canada.

The Liberal government overhauled the judicial appointments system in October 2016 in an attempt to recruit a more diverse array of candidates and make the selection process more transparent.

Cases show discrimination, bias

Wagner today cited some recent cases the Supreme Court has dealt with involving racism, including the case of Jeffrey Ewert, a Métis inmate who was convicted of the murder and attempted murder of two young women. The top court ruled that Canada’s prison service was using security tests that discriminate against Indigenous offenders and keep them behind bars longer and in more restrictive environments.

Wagner also cited the case of Ontario trucker Bradley Barton, which unleashed public outrageover how Indigenous victim Cindy Gladue was treated by Canada’s criminal justice system. During the trial, Gladue was described repeatedly as “native” and a “prostitute.”

Justice Michael Moldaver, who wrote for the majority in that case, said judges must do more to fight stereotypes against Indigenous victims of violence.

“As an additional safeguard going forward, in sexual assault cases where the complainant is an Indigenous woman or girl, trial judges would be well advised to provide an express instruction aimed at countering prejudice against Indigenous women and girls,” he wrote.

No call on systemic racism

Asked today if there is systemic racism in Canada’s justice system, Wagner declined to make a definitive statement. He said it’s the job of judges to weigh the facts in individual cases and speak through their judgments, while it’s up to elected officials and others to make more broad statements.

“As judges, we decide where evidence is brought forward,” he said. “We don’t issue broad statements generally without having a case to be decided upon.”

Lori Thomas, president of the Canadian Association of Black Lawyers, said she was disappointed by Wagner’s comments on systemic racism.

“The resistance to acknowledge systemic racism means that it will continue to be pervasive within the justice system,” she said.

“The fact that the perception by the community is that Black and Indigenous people are underserved or may not be given full justice in the justice system gives to mind that there is obviously a concern of systemic racism, and I can say that includes those acting in the legal community.”

Thomas said there is implicit bias within the justice system, especially given the small number of Black and Indigenous judges.

Even though Wagner said judges receive training to recognize and respond to bias and systemic discrimination, Thomas said that does not make up for a lack of diversity on the bench.

Indigenous people have long been over-represented in Canada’s courts and correctional system.

In his first news conference after being appointed as chief justice two years ago, Wagner called the incarceration rate of Indigenous people “unacceptable.”

“The rate is too high. It reveals a serious problem. And so far as the judiciary is concerned, I think that the court has a role to play whenever the case is presented to the court to decide those issues,” Wagner said at the time.

Source: Supreme Court’s chief justice calls for more diversity in Canada’s legal system

Peter Russell: Ottawa’s fragile, halting journey away from political patronage

Of note regarding judicial appointments:

In the 21st century, Canadians have raised their expectations of how important public positions are filled by our governments. And rightly so: Under the patronage model, these positions are handed to those who are known to be supporters of the governing party as a reward for political service, whereas merit-based appointment means finding the best-qualified person for the job. Our diminishing tolerance of favouritism is an appropriate raising of standards for a well-educated population.

Canadian governments appear to be getting it, enacting reforms that move the dial toward merit-based appointments and away from ones based on patronage. In 2010, Stephen Harper’s Conservative government established a committee-based process to advise the Queen as to who should serve as governor-general. This committee, chaired by the Queen’s Canadian secretary, two senior public servants familiar with the governor-general’s role and responsibilities and two individuals from different parts of the country with an understanding of the requirements of the office, would land on David Johnston. Two years after that, Mr. Harper established the Advisory Committee on Vice-Regal Appointments, which used a similar process to search for promising lieutenant-governor candidates by soliciting names from a broad range of candidates and creating a short list for the prime minister to choose from. This was an important step along the road of moving from patronage to merit-based appointments.

Justin Trudeau’s Liberal government, too, has made its own efforts with two reforms: an independent advisory board for appointments to the Senate and another one for the Supreme Court of Canada. The one for the Senate has three permanent Ottawa appointees, plus ad hoc appointees from the province or territory where a vacancy is being filled. The one for filling Supreme Court vacancies comprises judges, lawyers, and legal academics, plus at least two laypeople. The mandate of each board is to seek out outstanding candidates, encourage them to apply, then produce a short list from which the prime minister makes his selection.

But The Globe and Mail’s reporting about Justice Colleen Suche – who was rebuked by the Canadian Judicial Council last week for inappropriately giving advice on judicial appointments to her husband, Liberal MP and former cabinet secretary Jim Carr, as well as to the Justice Minister – exposes the halfway house the Trudeau government has built for itself on the road from patronage to merit.

Mr. Trudeau’s vice-regal selections seem pretty good. Over the five years he has been Prime Minister, he has appointed one governor-general in Julie Payette, as well as six lieutenant-governors, and only one of these appointments – former Liberal MP and cabinet minister Judy May Foote, as Lieutenant-Governor of Newfoundland and Labrador – has the appearance of being based on political patronage. The appointees include five women, a person of Cree background and an Acadian, part of the government’s policy of treating the representational quality of an appointment as part of what constitutes merit. And the appointments resulting from the new Senate and Supreme Court procedures have been impressive, even if there may well be ways to improve the process.

But if that all sounds familiar, that’s part of the problem. When Mr. Trudeau took over as Prime Minister in 2015, he did not use the Harper-era Advisory Committee on Vice-Regal Appointments. He did not make any announcement about this, nor give any explanation. We cannot know which names the committee would have put forward, but one thing is certain: Creating an institutional legacy for that process would have made it more difficult for a potentially reactionary prime minister to bring back the patronage system. And for all his efforts so far, wouldn’t it be a shame if they were discarded by a non-Liberal government simply because they were introduced by the Liberals?

This is particularly unnerving when it comes to the appointment of judges. Our judicial system has three basic strands. At the top is the Supreme Court of Canada, the highest court of appeal for disputes about every kind of law. At the bottom are the provincial and territorial courts, which is where most cases first go to trial. And in the middle are courts to which the federal government appoints the judges. Some of these are federal courts, maintained and administered by the federal government, and many more are courts maintained and administered by the provinces and territories, their courts of appeal and ones that conduct trials involving the most serious criminal matters and the most serious civil matters. These middle courts comprise the strata for which Justice Suche was sending lists of names to the Justice Minister.

And while the provinces and territories have adopted patronage-to-merit measures to reform appointments to their courts, and the system for appointing Supreme Court justices has been similarly reformed by the Trudeau government, appointments to this middle layer of courts remain all too vulnerable to patronage.

Efforts to reform the system of making appointments to these middle-strata courts go back to the 1980s, when judicial advisory committees (at least one for each province and territory) were introduced to make recommendations for appointments to vacancies on these courts. Candidates could be “recommended,” “highly recommended” or “not recommended.” The Harper government removed the “highly recommended” option. The Liberals restored it, but – and here’s the rub – they will not commit to appointing only candidates that are “highly recommended.”

And why is that? Well, the lists of the merely “recommended” are very long – a lawyer practically has to be disbarred to not make that list. The government can always find the names of its political friends on the lists of recommended candidates. Jurists such as Justice Suche should confine their advice to the Justice Minister to candidates highly recommended by independent advisory committees.

Now, with a minority government, is the time for parliamentarians to take a close look at the halfway house the Trudeau Liberals are content in live in, to make sure important positions go to the most qualified people – and to lay out a path that ensures the journey to merit-based appointments can be completed, regardless of which government is in power.

Source: Ottawa’s fragile, halting journey away from political patronage: Peter H. Russell

Federal judiciary edges closer to gender parity, but numbers of minorities drop


Hmm. Effect of change in Minister?:

The federal judiciary is edging closer to gender parity after the second consecutive year in which more women than men were appointed judges, new data show. Women now make up 43 per cent of the 905 full-time judges.

But the numbers of minorities dropped, also for the second year in a row. There were just four members of visible-minority groups chosen, and two Indigenous persons, out of 86 new judges.

In the wake of the new statistics, some members of the legal community are urging the government to do more to appoint minorities to the bench.

“I think it is time now to redefine what we mean by merit,” said Daphne Dumont, a former president of the Canadian Bar Association who practises law in Charlottetown.

“I think you can be highly meritorious for all sorts of reasons that aren’t necessarily the reasons given in the application form that you have to fill in.” For instance, Indigenous lawyers who have returned to their home communities to bring them access to justice have shown merit. The process, she and others said, typically rewards those who are perceived as leaders through volunteering, teaching and participating on boards of legal associations.

The Liberal government revised the appointment process in 2016, with a stated emphasis on diversity. For the first time, the government asked judicial applicants whether they are disabled, a member of a visible minority or an ethnic/cultural minority, LGBTQ2 or Indigenous.

Each year, the Office of the Commissioner for Federal Judicial Affairs reports on the numbers of applicants and appointments from each of the groups. The numbers cover federally appointed courts such as the superior courts of provinces, the Federal Court of Canada and the Tax Court.

From October, 2016, to October, 2017, an equal number of men and women – 37 – were appointed to these courts, although men far outnumbered women among applicants. The following year, female applicants for the first time outnumbered males, and the numbers appointed also exceeded those of males – 46 to 33. This year, appointments were 47 women, 39 men.

By contrast, the numbers went down among the minority groups. This year (from October, 2018, to October, 2019), there were 20 appointees – 14 from ethnic/cultural groups; four visible minorities; two Indigenous; and zero categorized as LGBTQ2 or disabled. (There were 19 LGBTQ2 applicants and six disabled ones. Applicants can stay in the pool for two years.) The previous year, there were seven visible minorities, three Indigenous and 29 overall. The first year of the reports, in 2017, there were 32 – including nine visible minorities.

Rachel Rappaport, a spokeswoman for Justice Minister David Lametti, said the minister has met with legal organizations since his appointment early this year to encourage applicants from visible-minority, Indigenous, linguistic-minority and LGBTQ2 communities. The meetings were also a chance to identify barriers and work together on solutions to further expand the pool of candidates, she said.

Lori Anne Thomas, president of the Canadian Association of Black Lawyers, said the appointments of black and Indigenous judges have been “woefully lacking.” She said she was singling out those two groups because they are overrepresented in the criminal-justice system, and among families in the child-protection system.

“The women who are appointed are white women. It shows there have been a lot of efforts in the legal community to create fairness and equality when it comes to gender, but it’s still not there in terms of race, or Indigenous persons,” she said in an interview.

Ms. Thomas said she would like to see “more consideration” given to members of overrepresented communities – for instance, for overcoming obstacles.

“Those who are racialized won’t be given the same kind of opportunities to speak on panels, to lead cases in the same way that especially their white male counterparts would be given.”

On that point, Scott Maidment, president of the Advocates’ Society, a lawyers’ group, said change needs to come from within the legal profession, too. To become a judge, “You need opportunities for leadership within the profession.” The Advocates’ Society has revised its leadership principles to stress inclusivity, he said.

Source: 43 per cent of federal judges

USA: White Supremacy Beyond a White Majority

Quite a contrast with Canadian judicial appointments, currently over 50 percent women under the current government, about one-third under the previous Conservative government and the 80 percent males judges appointed under Trump.

Can only foreshadow further divergence between Canadian and US jurisprudence and representation:

The white male racist patriarchy will not be denied. It is having a moment. It has its own president.

According to a Pew Research Center analysis of race/ethnicity and sex among validated voters in the 2016 presidential election, white men were the only group in which a majority voted for Donald Trump — 62 percent — although a plurality of white women did also — 47 percent.

We are living through a flagrant display of a white male exertion of power, authority and privilege, a demonstration meant to underscore that they will forcefully fight any momentum toward demographic displacement, no matter how inevitable the math.

The fear of white male displacement is a powerful psychological motivator and keeps Trump’s base animated and active.

It keeps farmers holding out hope and making excuses for him, even as his trade war devastates their operations. It keeps coal country loyal, even as the promises of a revitalized coal industry ring hollow. It keeps white voters in the rust belt on the edge of their seats, waiting for the day that he will magically bring back manufacturing. It keeps white voters in the South heated over the issue of immigration and an “invasion” or “infestation” of Latin Americans.

Trump’s central promise as a politician has been the elevation, protection and promotion of whiteness, particularly white men who fear demographic changes and loss of status and privilege.

As Vox reported in 2017, white people of all ideologies, including liberals, become more conservative when confronted with the reality that a rising minority population means a loss of white dominance.

As the psychologist Jonathan Haidt recently told Vox:

“As multiculturalism is emphasized more and more, there emerges a reaction against it on the right, which is attractive to the authoritarian mind and also appeals to other conservatives. And this, I think, is what has happened, this is what Trump is about — not entirely, of course, but certainly this is a big factor.”

It is about stacking the courts, controlling the bodies of women (look no further than the raft of state abortion restrictions recently passed, including the outrageous new abortion law in Alabama), fighting the redefinition of gender as personified by the advances in liberty among people who are transgender, restricting the voting of nonwhite, less conservative groups, and controlling the flow of migrants into the country who do not bolster the white population.

While much of the country tries to contend with the unending stream of outrages in the White House, the Senate majority leader is pushing through a steady stream of Trump’s far-right federal judges, often breaking precedent and allowing for their confirmations over their home state’s senators’ objection.

The recent confirmation of Joseph Bianco to the U.S. Court of Appeals for the Second Circuit, based in New York, was Trump’s 38th confirmed circuit court judge, HuffPost reported last week, adding:

“That’s more circuit judges than any president has gotten by this point in a first term, and means that one in every six seats on the nation’s circuit courts is now filled by a Trump nominee.”

These are lifetime appointments. Even if demographics change over one’s lifetime, these judges will not.

As a recent Congressional Research Service report pointed out, 90 percent of Trump’s circuit court nominees have been white and 92 percent of those confirmed have been white. Among recent presidents, only Ronald Reagan — who opposed making Martin Luther King Jr. Day a federal holiday, but eventually reversed himself, and who vetoedthe Comprehensive Apartheid Act, which, with a congressional override, leveled sanctions against South Africa for its oppressive racist social architecture — appointed and confirmed a higher percentage of white judges.

Eighty percent of Trump’s judicial nominees have been men, and men have been 74 percent of those confirmed.

None of this can fully prevent change, but it can slow it.

The strategy is to find a way to maintain white supremacy, white dominance, without the necessity of a white majority in the U.S. population.

The point is that once white people become a minority in America, the country itself will move from a majority rule ideal to a minority rule one.

The changing face of Canada’s judiciary: more women, more diversity

CBC catches up (see my earlier Taking stock of Ottawa’s diversity promises). McGill Professor Salzman makes the  assumption that previous processes were colour, gender, and race blind, as blind cv and other examples indicate is highly questionable if not downright false:

Canada’s judiciary is becoming more diverse, with more women, visible minorities, LBGT and Indigenous people on the bench.

The broader mix of judges — and especially the rising number of women hearing cases — is being hailed as historic progress by many in the legal profession. Some worry, however, that targeting “gross demographic categories” could erode a merit-based appointments system.

The number of Indigenous judges also remains low compared to other demographic groups.

The Liberal government overhauled the judicial appointments system in October 2016 in a bid to recruit a more diverse array of candidates and make the selection process more transparent. It made it mandatory to publicly report the number of applicants and appointees from demographics historically under-represented on the bench.

Statistics for the period Oct. 27. 2016 to Oct. 28, 2018, posted online by the Office of the Commissioner for Judicial Affairs, break down the 153 judicial appointments during that period:

  • 83 women
  • 70 men
  • 26 from “ethnic/cultural” groups
  • 16 visible minorities
  • 10 LGBT
  • 6 Indigenous
  • 3 with disabilities

Ray Adlington, president of the Canadian Bar Association, praised what he called the “significant progress” in boosting diversity in federal judicial appointments — which cover superior courts for provinces and territories, courts of appeal, the Federal Court, the Federal Court of Appeal and the Tax Court of Canada. He said he believes it’s crucial for the justice system to better reflect the population.

“If the judiciary visibly represents the society it serves, then it will give that society more confidence that the judiciary is serving the interests of that society,” he said.

“It will promote access to justice, it will promote confidence in judicial administration if the judges actually represent the society. Historically that has not been the case, but we’re certainly moving toward that objective.”

The most dramatic change in the judiciary has been in terms of gender balance, with 2016 marking the first year more women than men were appointed to the bench.

As of April 1, 2019, there were 1,193 federally-appointed judges, 492 of them women.

Andrea Gunraj of the Canadian Women’s Foundation called that progress, but said more needs to be done to achieve gender equity on the bench.

“There are other intersectional forms of equity to consider as well,” she said. “For instance, how many of the judges are Indigenous women? Racialized women? Women with disabilities? A judiciary that reflects all communities, in all their diversities, is so critical.”

More women in law schools

Acadia University law professor Erin Crandall said the key to transforming a judiciary that, historically, has tended to be made up of white men is to get students from more under-represented demographics into law schools.

“It’s a really slow process, because you don’t have somebody going from being in law school to being a judge in Canada. Typically they have 15 to 20 years’ experience,” she said. “Women started to enter law schools in greater numbers in the 1970s, so we’ve had this growth now over several decades.

“In some cases, we’re still building those larger potential applicant pools.”

The number of Indigenous appointees also remains relatively low. According to the Office of the Commissioner for Judicial Affairs, 46 individuals who identified as Indigenous applied for judicial appointments between 2016 and 2018. Twenty-one of them were ‘recommended’ or ‘highly recommended’ by the appointments process. Just six ended up being appointed.

Crandall said more law schools are beginning to launch special streams for Indigenous or black students to encourage more of them to join the legal profession.

The government’s last report on the appointments showed that, as of December 2018, eight of the country’s new justices were Indigenous, 20 identified as visible minorities, 13 identified as LGBTQ2 and three identified as people with disabilities.

The CBC has asked the federal government for more recent data but it has not supplied the information to date.

Justice Minister David Lametti has been fending off criticism about judicial appointments since the Globe and Mail reported that the government consults the Liberal Party’s database of supporters in the course of the appointment process.

Defending the vetting regime, Lametti insisted this week the government has worked to improve transparency and diversity in a merit-based process. The government has appointed or elevated 296 judges since it was elected in 2015, he said.

“The diversity of these candidates is unquestioned,” Lametti told the House of Commons in question period Thursday. “Fifty-five per cent of them are women and we’re going to continue to ensure that our appointments process is merit-based, continues to be fair, continues to be open and continues to attract the very best candidates.”

LGBT community playing ‘catch-up’

LGBT advocate and Toronto lawyer Richard Elliott said the representation of gay, lesbian and transgender Canadians on the bench is lagging behind other demographics. He pointed out that there has never been an openly gay or lesbian justice on the Supreme Court of Canada.

Part of the problem, he said, has been the small pool of LGBT candidates graduating from law schools and serving in the legal community.

“For many years, we were considered criminals. The law was used to oppress us and we were excluded from civil life in Canada, including the legal profession. So we’ve been playing catch-up for many years,” Elliott said.

Elliott said judges gain valuable insight into the lives of LGBT Canadians when they have colleagues on the bench who are openly gay or lesbian.

Call for a ‘blind’ appointment process

Some question the pursuit of judicial diversity, however. Philip Carl Salzman, professor emeritus of anthropology at McGill University, said he believes the diversity objective is “highly questionable” because it runs counter to recruitment based on merit.

“Diversity is gender, racial, sexual preference, ethnic, etc. Those seem to me to be a very poor basis for picking people who are supposed to make important decisions,” he said.

Salzman said he has seen a similar trend in academia, of people being hired on the basis of diversity goals over scholarly expertise. He said he believes candidates should not be selected as a result of “gross demographic categories” because it amounts to reverse discrimination.

“You’re going to get people who aren’t as good as you would if you had a colour-blind, sex-blind, gender-blind process,” he said.

Source: The changing face of Canada’s judiciary: more women, more diversity

Trump Is Reshaping The Judiciary. A Breakdown By Race, Gender And Qualification

Good analysis with significant longer-term impact. Sharp contrast with Canadian judicial appointments under the current government where by my count, 56 percent are women, 9 percent visible minority and 3 percent Indigenous peoples:

The Trump administration has already written the opening chapters of what could be its most enduring legacy: the makeup of the federal courts.

In partnership with Senate Majority Leader Mitch McConnell, the Trump White House has secured lifetime appointments for 29 appeals court judges and 53 district court judges. That’s not to mention two Supreme Court nominees.

“He came into office with a mandate to nominate judges in the mold of Justice [Antonin] Scalia and Justice [Clarence] Thomas,” said Carrie Severino, chief counsel at the Judicial Crisis Network, which advocates for conservative judges. “That was a key reason he won the presidency.”

Supporters will celebrate that record this week at the annual convention of the Federalist Society, whose primary mission is to place conservatives on the courts.

The effort is so important to the Republican legal community and the party’s voting base that lawmakers have been holding hearings for nominees while the Senate was in recess, aiming to confirm those candidates in the lame-duck session scheduled before the end of the year.

Critics call this an abuse of the system and point out that all the Trump picks for the appeals courts and the Supreme Court tend to have something in common: most of them are white men.

“Of his 43 appellate nominations, none are African-American,” said Vanita Gupta of the Leadership Conference on Civil and Human Rights.

“None are Latino. Only nine are women. Our nation’s great diversity should be reflected in its government institutions, especially the federal judiciary, which serves as the guardian of our rights and liberties.”

Also notable, said Democratic Sen. Patrick Leahy of Vermont, is that the Republican-controlled Senate limited President Obama to two circuit court judge confirmations and 22 district court nominations during his final two years in office.

Obama’s choice for the Supreme Court, Merrick Garland, never got a hearing.

NPR aggregated these data from public sources and inquiries to judicial nominees. This presentation reflects the state of nominations formally sent to the Senate as of Nov. 14, 2018. View the full spreadsheet here.

Source: Trump Is Reshaping The Judiciary. A Breakdown By Race, Gender And Qualification

Ottawa appointing more female judges, but bench still short of gender parity – The Globe and Mail

Good overview with the latest numbers. My tracking of women, visible minorities and Indigenous judicial appointments since 2016 is above:

The federal Liberal government has been naming women to the bench at an unprecedented rate this year, with nearly three women chosen for each man, government figures show. Of 37 judges named to federally appointed courts in 2018, 27 are women.

The boost in the appointment rate of women has been helped along by historic levels of female applicants, who make up 45 per cent of the 1,169 applicants since the Liberals established a new appointment process in October, 2016, according to the Office of the Commissioner for Federal Judicial Affairs, which collects data on the process. That’s up from 30 per cent during the 10 years the Conservatives were in power. (Federally appointed courts include the superior courts of provinces, the Federal Court, Tax Court and the Supreme Court of Canada.)

The rapid rate of female appointments still leaves the bench well short of gender parity. The 866 full-time positions are now 39.6 per cent women, up from 36.6 per cent when the Liberals took office in November, 2015, according to figures supplied at the request of The Globe and Mail.

The government has put into effect its stated policy of having a 50-50 gender split in Cabinet. But it has never publicly stated a target for the appointment of women to the judiciary.

If it has set numerical targets for achieving a 50-50 split, it is not saying.

“All judicial appointments are made on the basis of merit, taking into account the needs of the court,” Dave Taylor, a spokesman for Justice Minister Jody Wilson-Raybould, said in an e-mail. “As we move forward, we are confident that our Government’s goal of a balanced, meritorious and diverse bench will be realized.”

Members of the legal community interviewed for this story said they believe the Liberals are stepping up efforts to bring about gender parity on the bench. Several lawyers said they welcome that effort. “As a middle-aged white guy, I’m not concerned about what might be interpreted as a disproportionate number of women who are appointed to the bench,” Halifax privacy lawyer David Fraser said in an interview. “If it takes a little bit of corrective action to get us close to a properly representative judiciary, I think it’s fine.”

During the Conservatives’ period in office, from 2006 to 2015, women made up 30 per cent of judicial appointments. The Liberals made several changes to the appointment process in 2016, including asking applicants to fill out questionnaires describing what equity and diversity mean to them. And for the first time, they asked applicants their race, ethnicity, sexual orientation and disability status, promising to make the data public. (The judicial affairs office says it will make these more detailed figures for the second year of Liberal appointments under this process public in October. Several of the 2018 appointees are members of racial minority groups.)

The appointment process has two main stages. Applicants are screened by one of 17 judicial advisory committees made up of federal and other representatives. Then the government chooses from the list of candidates recommended or highly recommended by the committees.

Some lawyers stressed the importance of merit in judicial appointments. “I certainly support gender equity but the overriding factor has to be choosing the best candidates, as far as I’m concerned,” Andrew Rouse, a litigator in Fredericton, said in an interview.

Heather Treacy, a lawyer in Calgary, said she applauds the trend “provided it is balanced with ensuring top-quality candidates are appointed. This is less of a current concern given the increased numbers of very able females engaged in the legal profession.”

Others offered unqualified praise. “I think it’s terrific movement in the right direction,” said Brian Facey, who practices competition law in Toronto.

Rosemary Cairns Way, who teaches law at the University of Ottawa and monitors diversity in judicial appointments, said the jump in the overall proportion of women on the bench is noteworthy. It “demonstrates that achieving gender parity requires action (as opposed to faith in a ‘trickle-up’ process),” she said in an e-mail.

As for the greater proportion of women applying for the federal bench, she said, “I suspect it is because potential women applicants are more confident that the skills, experience, and expertise they present are more likely to be valued.”

via Ottawa appointing more female judges, but bench still short of gender parity – 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

Judicial Advisory Committees: Clear signal of increased diversity

English media slower to pick this up than Le Devoir.

By way of context, Rosemary Cairns Way in her Deliberate Disregard: Judicial Appointments under the Harper Government, analysed the diversity of the Committees as of May 2014. 12 of the 17 committees were chaired by men, with 70 percent of filled positions held by men (her analysis did not include visible minorities or Indigenous peoples).

The Government, in a significant implementation of the government’s diversity and inclusion agenda, has essentially flipped this around as the following charts demonstrate for seven of the appointment committees.

election-2015-and-beyond-implementation-diversity-and-inclusion-083

election-2015-and-beyond-implementation-diversity-and-inclusion-084

The regional variations generally overweight all groups in relation to the local demographics with some exceptions (e.g., Ontario GTA representation of visible minorities). Three of the seven committees are headed by women.

Overtime, and in line with the 2016 judicial appointments, this should further increase diversity on the bench:

With the number of judicial vacancies reaching near-record levels, the Liberal government has revived a dormant appointment process, and signalled that it intends to change the face of the judiciary.

It named the members of seven newly constituted screening committees for the federal bench last week. Each of the committees has a majority of women.

The announcement of the judicial advisory committees comes as full-time vacancies are at 57 across the country, and as courts are struggling to meet Supreme Court deadlines for timely justice. In the fall, murder charges in Alberta and Ontario were thrown out for unreasonable delay. All judicial advisory committees from Ontario to Newfoundland and Labrador have been without any members at all since at least last April. And the government removed the members of all other committees in October.

The government announcement still leaves 10 of the 17 committees across Canada without members. A spokeswoman for Justice Minister Jody Wilson-Raybould said the government named the committees in areas with high numbers of judicial vacancies.

The federal government asked members of the public, including non-lawyers, to apply for three federally appointed spots on each committee back in mid-October, allowing one month to do so. The Liberals were critical of the appointment process under the Conservatives for what they called its lack of openness and a lack of diversity in appointments. While the government devised a new system, it appointed just 39 judges (some of them promotions, or the naming of regional judges) in the 16 months since the Liberals took office. Chief Justice Neil Wittmann of the Alberta Court of Queen’s Bench said publicly his court had grown desperate.

Rob Nicholson, the Conservatives’ justice critic, is critical of delays in the appointment process. “I still don’t understand why it has taken them so long to make the judicial appointments that it is their responsibility to make,” he said in an interview. It is important to make timely appointments “because when there’s an absence of judges, cases will get thrown out. That does not help the credibility of the justice system.” He said he is “fine” with the majority of members being women.

The Justice Minister did not respond to questions about when the committees would begin recommending candidates, and when the government would make its first appointments from those recommendations. The committees do not pick judges, but they create the pool of approved candidates from which the federal government makes its choices.

Some legal observers consider the federal government’s authority to appoint judges a major yet underappreciated exercise of its power. Former prime minister Stephen Harper changed the process soon after taking office to give Ottawa’s appointees on the committees a voting majority: he added a police representative, and took away the vote from judges who sat on committees. He also removed the “highly qualified” category, to leave the government more leeway to choose. Under the Conservatives, 30 per cent of applicants for the federal judiciary, which includes the Federal Court, Tax Court and superior courts in the provinces, were women, and 30 per cent of appointees were women. Little more than a handful of new judges were visible minorities, though in its decade in office the Conservatives did promote several minorities from lower courts to higher ones.

The Liberals have now undone all the Conservative changes. The police representative is gone. The legal community (the Canadian Bar Association, the law society, the provincial Attorney-General and a Chief Justice) appoints four of the seven members, and the federal government advertised for candidates for the remaining three positions from the general public. While the names of members on previous committees were public, the government now publishes capsule biographies on each. Several have a background in social causes, such as Bruce Rivers of Toronto, executive director of Covenant House, which serves homeless youth, and Jelle Jeen Van Ens of Beaver County, Alta, a social worker.

In all, 34 of the 49 members named so far to the committees are women. On two of the new committees, there is just one man out of seven members, and on two others, just two men. That contrasts sharply with the committees during the Conservative years; most committees had a majority of men, and some committees (Saskatchewan’s and the one for Ontario West and South) had no women members at all.

There are also several visible-minority members on the seven committees announced last week, including an African-Canadian former deputy police chief from Toronto, and two members of First Nations from British Columbia.

In a news release, Ms. Wilson-Raybould said the committee members will receive training in the importance of judicial diversity from Supreme Court Chief Justice Beverley McLachlin. An accompanying fact sheet explains that they will watch her give a speech on videotape. It’s a shortened version of one she gave in Scotland in 2012: “The first attitude that the judge must cultivate is introspectiveness. A judge must be willing to take moral stock of herself. … In a diverse society introspection is essential to ensuring that the phenomenon of difference confronting the judge does not skew the decision-making process.”

Of the 39 judges appointed by the Liberals since they took office in November, 2015, 24 are women.

Source: Petite révolution judiciaire à Ottawa | Le DevoirNew advisory committees could change the face of Canada’s judiciary