Biden seeking professional diversity in his judicial picks

Significant. In contrast, my analysis of judicial appointments under the Liberal government (close to 500 appointments, 55.7 percent women, 8.5 percent visible minorities, 3.1 percent Indigenous):

President Joe Biden spent a recent flight aboard Air Force One reminiscing with lawmakers and aides about his start as a young lawyer in Delaware working as a public defender in the late 1960s.

The flight from New York to Washington was short, and there wasn’t much time to explore the president’s brief time in the job during the civil rights era. But as Biden considers his first Supreme Court nominee, this lesser-known period in his biography could offer insight into the personal experience he brings to the decision. The account was relayed by a person familiar with the trip who insisted on anonymity to discuss it.

Biden has already made history by nominating more public defenders, civil rights attorneys and nonprofit lawyers to the federal bench during his first year in office than any other president, increasing not just the racial and gender diversity of the federal judiciary but also the range of professional expertise. And it’s possible that theme will continue as he looks to make more history by nominating the first Black woman to the nation’s highest court.

While three of the current justices have experience as prosecutors, none was a criminal defense attorney. The last justice with serious experience in defense was Thurgood Marshall, a civil rights attorney nominated about 55 years ago. He was the first Black person on the court and retired in 1991.

Some of the women on Biden’s list of potential nominees have deep public defense or civil rights backgrounds: Ketanji Brown Jackson, 51, for example, worked as a public defender and served on the U.S. Sentencing Commission before she was nominated to the bench by President Barack Obama. Eunice Lee, 51, whom Biden named to the U.S. Court of Appeals for the 2nd Circuit in August, is the first former federal defender to serve on that court.

Biden’s judicial appointments thus far make clear his interest in professional diversity.

Nearly 30% of Biden’s nominees to the federal bench have been public defenders, 24% have been civil rights lawyers and 8% labor attorneys. By the end of his first year, Biden had won confirmation of 40 judges, the most since President Ronald Reagan. Of those, 80% are women and 53% are people of color, according to the White House.

“It’s so important to have a diversity of perspectives and having the judiciary really reflect the diversity of lived experiences and perspectives of the folks who are coming before them,” said Lisa Cylar Barrett, director of policy at the NAACP Legal Defense & Educational Fund.

The Supreme Court hears only a fraction of federal cases filed each year. Federal judges are hearing most of the cases, with roughly 400,000 cases filed in federal trial courts a year. The high court hears only about 150 of the more than 7,000 cases it is asked to review annually.

Most of the judges appointed to the federal bench have worked as prosecutors, corporate attorneys or both. A survey three years ago found more than 73% of sitting federal judges were men, and more than 80% were white, according to the Center for American Progress.

A diversity of professional expertise makes for a more fair and just bench, advocates say. Judges draw on their personal histories to help them weigh arguments and decide cases, and they also learn from each other. Public defenders often represent the indigent and the marginalized, those who often can’t afford their own attorneys.

“They represent the 80% percent of people in the criminal legal system too low-income to afford a lawyer,” said Emily Galvin-Almanza, a former public defender who founded the nonprofit Partners for Justice. “So when you put a public defender on the bench, you’re putting a person on who listens with a very different ear. You have a person on the bench with an experience of the realities of very, very disempowered people.”

Biden’s brief time as a public defender isn’t widely discussed, and it isn’t listed in his official biography on the White House website. He’s more prone to talk about his 36 years as a senator and his time as head of the Judiciary Committee, where he oversaw six Supreme Court nominations.

But the president has spoken at times about his brief time as a public defender before he became a U.S. senator at the age of 29. It’s informed some of his decisions in office, like directing federal grant money for public defense and expanding other federal efforts on public defense.

“Civil rights, the Vietnam War and President Nixon’s rampant abuse of power were the reasons I entered public life to begin with,” Biden said in a 2019 speech in South Carolina during the presidential campaign. “That’s why I had chosen at that time to leave a prestigious law firm that I had been hired by and become a public defender — because those people who needed the most help couldn’t afford to be defended in those days.”

In a 2007 memoir, he called the job “God’s work.”

The president promised during his campaign for president that he’d nominate a Black woman to the bench, and he spent his first year in office broadening his potential applicant pool through judicial appointments. Most Supreme Court justices have come from federal appeals courts, but it’s not a requirement. Among the current justices, only Justice Elena Kagan wasn’t a federal appeals court judge before joining.

Federal judges are often chosen from state courts, which also lack in diversity. But Biden’s very public push to diversify federal judges could have an impact on how judges in the states look, too.

“Neither state courts nor federal courts reflect the diversity of the communities they serve, or the diversity of the legal profession. Courts across the country are falling short,” said Alicia Bannon, the director of the Judiciary Program at the Brennan Center for Justice at NYU School of Law. “But we’re hoping that is slowly changing.”

Biden has promised a rigorous selection process for his Supreme Court nominee. His team, led by former Democratic Sen. Doug Jones, is reviewing past writings, public remarks and decisions, learning the life stories of the candidates and interviewing them and people who know them. Background checks will be updated and candidates may be asked about their health. After all, it’s a lifetime appointment.

The goal is to provide the president with the utmost confidence in the eventual pick’s judicial philosophy, fitness for the court and preparation for the high-stakes confirmation fight. Interviewing potential candidates comes later, but Biden has already spoken to some of the women who may be under consideration back when they were being appointed to other courts.

Biden will also continue to seek the advice of lawmakers. He was to host Senate Judiciary Committee Democrats on Thursday, a White House official said.

Source: Biden seeking professional diversity in his judicial picks

Lawyer who called for elimination of citizenship tests named to bench

I thought the right-wing press might notice Avvy Go’s appointment. Will be interesting to see how she manages the transition from a very public activist to being a more discrete judge:

A Toronto legal activist who questioned the need for immigrants to take immigration citizenship tests and said the COVID-19 pandemic has created an increase in racism in Canada, has been appointed a federal judge.

Blacklock’s Reporter said Avvy Yao-Yao Go has also lamented the “shameful history” of Canada’s first Prime Minister, John A. Macdonald.

Go had been director of a Toronto law clinic that criticized Canadians for “anti-China sentiment and white supremacy.”

Go described herself in a 2020 commentary in the Globe & Mail as a lawyer “fighting for social justice” and cohesion.

“The past several years of turmoil both in the United States and Canada have taught us our democracy is fragile and that structured racism, if left unchecked, poses a serious risk to social cohesion,” wrote Go.

Attorney General David Lametti appointed Go to the bench on Friday saying he was confident she will “serve Canadians well.”

Go was director of the Chinese and Southeast Asian Legal Clinic of Toronto. The federally-funded group in a June 1, 2020 submission to the United Nations Office of the High Commissioner for Human Rights complained of widespread racism in Canada.

“In contrast to the image of Canada as multicultural and welcoming, many Canadians have been emboldened to use the pandemic as a license to exhibit hate and racism,” said the submission to the UN.

“Moreover, since the outbreak of the pandemic, anti-Asian hate speech has proliferated on social media platforms fueled by right-wing extremists who are using the pandemic as an opportunity to stir up racist ideologies.

“The collision of conspiracy theories, anti-China sentiment and white supremacy has rendered dangerous results, including the movement of racist theories and messaging from the fringe to the mainstream.”

The group earlier received a $301,904 grant from the Canadian Heritage department.

“While the Prime Minister has remarked that ‘hate, violence and discrimination have no place in Canada’ and his government stands with ‘Asian-Canadians across the country,’ his government has failed to take any concrete steps to address the surge of hateful violence and messaging that has arisen during the pandemic,” said the report.

Meanwhile, Go in numerous commentaries and letters to editors criticized Canadians’ treatment of racial issues and proposed abolishing the citizenship test as a “hollow screening” of immigrants.

“The moment I became a true Canadian was the very moment when I began to challenge the Canadian system,” the Hong Kong-born Go wrote in 1998.

In a 2014 commentary in the Toronto Star, Go lamented the “shameful history” of Macdonald, “architect of racist law” that saw Canadians “forced to live in nightmarish conditions while Macdonald pursued his dream to unite Canada.”

“Given the stark human rights record under his belt, why should Canadians celebrate John A. Macdonald’s birthday?” wrote Go.

In a 2013 letter to the Globe, the judge wrote: “The term ‘visible minority’ is fraught with issues, the key one being it uses ‘white’ as a standard against which everyone else is measured.”

“As we prepare to mark Canada Day, Ottawa must admit past wrongs particularly against Chinese-Canadians,” she wrote Toronto Star editors in 2003.

Go was one of thirteen new federal appointees named to the bench Friday.

Source: Lawyer who called for elimination of citizenship tests named to bench

Selley: Justin Trudeau’s symbolic agenda collides with itself at the Supreme Court

Can’t satisfy all groups on a nine-member court (more latitude with respect to all judicial appointments where government, as per the contrast between the 2016 baseline and subsequent appointments highlights. And while symbolism is important, the harder work lies with reducing inequalities and long-standing issues:

A few headlines from the past week: “Justice Mahmud Jamal is first person of colour nominated to the Supreme Court of Canada” (CBCthe Toronto Star, and The Guardian). “ ‘Taunted and harassed’ as a youth, judge Mahmud Jamal receives historic Supreme Court nomination” (CTV and the National Post, quoting Jamal’s application statement). “Judge Mahmud Jamal, who finished high school in Edmonton, nominated to Supreme Court of Canada” (the Edmonton Journal, scoring the all-important local angle).

The first sentence in The Globe and Mail’s story mentions that Jamal is a “frequently cited author on the Charter of Rights and Freedoms.” We learn later on about his copious qualifications and impressive record as a jurist. But the second sentence explains a conflict: Prime Minister Justin Trudeau was “under pressure from minority and Indigenous organizations to make the Supreme Court more diverse.” And so “the Indigenous Bar Association is disappointed.”

The Supreme Court has some pretty spicy meatballs on its plate, not least the future of certain religious practices in certain parts of Quebec’s public service, and will have more spicy meatballs in the future. The retiring Rosalie Abella is no ordinary Supreme Court justice, but rather the standard-bearer for a very activist and flexible brand of judge. We might hear more about Jamal’s approach when he meets with parliamentary committees. But surely it’s odd how much more we seem to care about who he is than about how he thinks or how he might rule.

Justin Trudeau isn’t the first prime minister to be concerned with the symbolism of his appointments, and nor have the Canadian media only recently acquired an interest. Globe and Mail headline writers greeted Bertha Wilson’s appointment in 1982 with “First woman is appointed to Canada’s top court” (March 5). (This was followed by “Woman judge still avoiding press” (March 9) and finally “Woman justice to take oath” (March 26).) Abella’s and Louise Charron’s appointments in 2004 were hailed for approaching near-gender-parity on the top bench.

This is all for the good, to a large extent. In a jury trial, we are ostensibly judged by our peers. We shouldn’t want judges to be members of an exalted class. Ideally, the jurisprudence they create would reflect the full scope of Canadian experiences — of class, race, ethnicity, faith and so on.

But it’s not a stretch to say that Trudeau — Mr. “Because it’s 2015″ — is more obsessed with symbolism than is typical. And sometimes it makes his life far more difficult than it needs to be. On the Supreme Court, his wish to appoint an Indigenous justice runs smack into his pledge never to appoint a justice who can’t manage a hearing in both official languages — which is to say, his wish to placate Quebec nationalists at every possible turn.

“A fully bilingual Indigenous candidate who also meets regional requirements and conventions” is a very tough order to fill, as many articles in the press have explained. Fewer articles have noted how far offside this requirement is with Trudeau’s reconciliation agenda. Trudeau’s new rule for judges doesn’t just discount Indigenous languages entirely; it also demands Indigenous lawyers learn not just one settler tongue fluently, but both! In a recent interview with APTN, Harry LaForme, Canada’s first Indigenous appellate court judge, likened the policy to the assimilation of children at residential schools. It would be very awkward, if only more people noticed.

You see a somewhat different problem when it comes to the unfilled vacancy at Rideau Hall, which is seeing similar demands for a minority or Indigenous appointment. Either would be fine, obviously, just so long as they’re not on a mission to do anything other than be the Queen’s representative on Canadian soil. You can just imagine Trudeau and his advisers struggling with the concept, even after Julie Payette’s flameout and Paul Martin’s near-miss with obvious-separatist Michaëlle Jean. This is a chance to make a splash, to send a message!

But the returns diminish. Real people who need real improvements in their lives cannot be impressed by symbolism. And weakness for symbolism makes us overlook things. It’s a distraction. Many of Trudeau’s detractors, especially to his left, would suggest it has distracted him from actually making significant progress on issues central to his brand, and to which these symbolic appointments are meant to nod.

A pledge to eliminate boil-water advisories on reserves is worthless without eliminating boil-water advisories. Adopting or not adopting the UN declaration on Indigenous rights is worthless without implementing what’s in it. At some point after accepting the findings of the Truth and Reconciliation Commission, which had a whole section on unmarked and forgotten children’s gravesites, someone was going to have to pony up the money to look for those gravesites. It took until now.

I often argue there are maddeningly few fundamental differences between Liberal governance and Conservative governance in Canada — certainly not nearly enough to justify the intensity of the battles between them. Privileging action and disdaining empty symbolism is one principle Canadian conservatives should guard jealously, even if they don’t always apply it consistently themselves. It’s the only way to help real people with real problems.


Ford government says it’s changing judicial appointments to promote diversity. Racialized lawyers accuse it of ‘power grab’

Of note. The annual reports by the Ontario Judicial Appointments Advisory Committee allow for assessment of these changes:

Organizations representing racialized lawyers have all come out against the Ontario government’s proposed changes to judicial appointments, which the attorney general says are partly needed to improve diversity on the bench. 

Major organizations representing Black, Asian, South Asian and Muslim lawyers told the Star they didn’t ask for these changes. They argue the new system will lead to the perception that the appointments of provincial court judges in Ontario is no longer an independent and impartial process and could allow for provincial governments to make patronage appointments. 

“We see this as a power grab dressed up in the very thin veneer of purported diversity,” said Nader Hasan, a member of the legal advocacy committee of the Canadian Muslim Lawyers Association. 

“Our view is that diversity and excellence are best preserved by maintaining the independence and integrity of the current process.” 

Added Raphael Tachie, president of the Canadian Association of Black Lawyers, “It’s challenging to read something that says, ‘We’re doing this to increase the diversity of the judiciary,’ when the equity-seeking groups didn’t ask for it.”

In an omnibus justice bill tabled at Queen’s Park last month, Attorney General Doug Downey proposed several changes to the way provincial court judges are appointed. 

It includes significant changes to Ontario’s Judicial Appointments Advisory Committee (JAAC), the independent panel of judges, lawyers and members of the public that vets judicial applicants and submits a ranked short list of at least two candidates to the attorney general. 

Under the proposed amendments, that shortlist would grow to at least six candidates. “It allows for a bigger look at what’s out there in terms of creating some diversity and creating more choice,” Downey told the Star when he tabled the bill. 

The attorney general could also reject the six-person shortlist and ask to see the names of the next six candidates, as he is currently permitted to do with the two-person shortlist. Downey says he has already asked the committee to provide shortlists with more than two names, and that this change merely formalizes that practice. 

Janani Shanmuganathan, a board member of the South Asian Bar Association, argues that allowing the attorney general more choice in who to appoint to the bench leaves room “for a partisan or patronage appointment — some sort of appointment based not on the selection criteria or on who is best fit for the job, but for other reasons.”

A spokesperson for Downey maintained that the proposed changes reflect feedback received from lawyers and “justice-sector partners” and will ensure the appointments process remains non-partisan. 

“We believe it is responsible to update the system to help Ontario’s bench better reflect the evolving diversity of the province’s communities,” Nicko Vavassis said in an email. 

Another proposed change would mean the three legal organizations with representatives on the committee — the Law Society of Ontario, the Ontario Bar Association and the Federation of Ontario Law Associations — would no longer pick their own representatives, but would submit a shortlist of candidates for the attorney general to choose from.

“That will allow us to manage balance and diversity on the committee itself as well,” Downey told the Star last month. 

The attorney general already picks the seven community members on the 13-person committee.

Legal groups representing racialized lawyers say improving diversity on the bench is a laudable goal, but say they struggle to see how the government’s more significant changes would accomplish that. 

“Is there a problem with diversity on the JAAC itself? I don’t think there is. No one has complained there is an issue,” said Emily Lam, chair of the advocacy and policy committee and board member at the Federation of Asian Canadian Lawyers. 

“The irony is Mr. Downey himself has described JAAC as the gold standard, so why does he need these changes?” Lam said. 

“The concern is that this is actually for partisan purposes, and I think that transparency and fairness call for a discussion to be had by Mr. Downey with stakeholders and the public before taking any further steps.” 

The Federation of Ontario Law Associations said it did not receive much of an explanation from Downey for the proposed change to selection of committee members. 

“It has been suggested that it might be to achieve some greater diversity; however, given that the (attorney general) appoints the majority of the committee and the fact that our bench is quite diverse, it does not appear that we have an issue in this regard,” federation chair Bill Woodward said in an email. 

“This change gives the appearance of allowing the (attorney general) to have even greater control over the composition of the JAAC.” 

The Law Society of Ontario and the Ontario Bar Association have not objected to the proposed changes, and told the Star that they support a system that produces diverse judges. 


British Columbia Appeal Court ‘sorely lacking’ in people of colour: top judge

Of note:

Since the Liberal’s re-election in 2019, nearly 59 per cent of the judges federally appointed or elevated have been women, 16 per cent identify as a visible minority and a further three per cent identify as Indigenous, said the department. (last para highlights increased diversity in appointments since 2016:

B.C.’s top judge admits that the B.C. Court of Appeal is “sorely lacking” in diversity among its judges.

In 2016, the Trudeau government introduced policies aimed at increasing diversity for federally appointed judges, including those on B.C.’s highest court and the B.C. Supreme Court.

But while the gender balance on the Appeal Court has been improved, with 11 of the 24 current full-time and part-time judges being women, there are no judges who are Black, Indigenous or people of colour.

But while the gender balance on the Appeal Court has been improved, with 11 of the 24 current full-time and part-time judges being women, there are no judges who are Black, Indigenous or people of colour.

Chief Justice Robert Bauman of the B.C. Court of Appeal said that it was important to the administration of justice that public institutions reflect society.

He said the judiciary and law are enriched by judges bringing a wide range of experiences and perspectives to their work.

“For many years, the B.C. Court of Appeal has achieved gender balance, or near-balance, between male and female judges,” Bauman said in a statement. “However, the Court is sorely lacking in other forms of diversity, especially judges who identify as Indigenous, Black or people of colour.”

Bauman noted that Appeal Court judges are appointed almost exclusively from the pool of judges who make up the B.C. Supreme Court, which he said has had an increasing number of diverse appointments in the past several years.

“That being so, I expect that the Appeal Court will begin to receive appointments in the coming years that will enhance the Court’s diversity, and I look forward to that positive development.”

In September, the Canadian Bar Association urged the federal government to put its stated commitment to diversity in the courts into action, noting that the judiciary in Canada remains overwhelmingly white with judges lacking first-hand knowledge and experience of the racism and systemic challenges faced by people of colour.

Raphael Tachie, the president of the Canadian Association of Black Lawyers, also believes the government is not moving fast enough.

“Good rhetoric is appreciated. To be taken seriously, you need to take concrete steps. If you look at the B.C. Court of Appeal, it’s not a reflection of concrete steps.”

Tachie said he moved from B.C., where he practised law for 11 years, to Ontario in part because he believes his career prospects as a Black lawyer in the eastern province are better.

He said he does not accept the argument made by some in the judiciary and in law schools and corporate law firms that the lower courts need to be stocked with more qualified candidates before the higher courts can become more diversified.

Rupinder Gosal, president of the South Asian Bar Association of B.C., said it’s definitely a goal of her organization to increase diversity among judges but added she understands why there aren’t many diverse Court of Appeal judges because up until recently there weren’t as many appointments of diverse judges at lower levels.

“I think it’s unfortunately a step-by-step process and it’s unfortunately a process that will take some time.”

But Gosal said there were concerns about what she called systemic barriers to judicial applicants, including requirements to provide judicial references, as well as a need to encourage more candidates to step forward and apply.

In 1985, Wally Oppal was the first person of colour appointed to the B.C. Supreme Court. He was elevated to the B.C. Court of Appeal in 2003 where he served for two years before being elected to the provincial legislature and serving as attorney general for four years.

He said that getting more diverse judges on the bench was a “challenging” issue but added that he had never met anyone in positions of power in the justice system, whether judges or justice ministers, who don’t agree that there’s a greater need for diversity.

“The multicultural aspect of the justice system has only started to change within the last 20 years or so, 25 years. So I think there’s a certain amount of catch up that has to take place.”

In a statement, the federal Justice Department said that the face of Canada’s judiciary has changed considerably since the Liberals took office.

“We are committed to having a judiciary that looks more like Canada — one in which all Canadians can see themselves reflected,” said the statement.

“We are proud of the transparent and accountable appointment process we put into place to identify outstanding judicial candidates who reflect Canada’s diversity.”

Since the Liberal’s re-election in 2019, nearly 59 per cent of the judges federally appointed or elevated have been women, 16 per cent identify as a visible minority and a further three per cent identify as Indigenous, said the department.

Source: Appeal Court ‘sorely lacking’ in people of colour: top judge

In support of a process based on merit

One of the better and more nuanced discussions regarding merit in the judicial appointment process and the involvement of the political levels:

The president of the Canadian Bar Association has written to party leaders in Parliament and justice critics to clarify his comments on judicial appointments, which he says have been mischaracterized in the House of Commons and in news reports. CBA president Brad Regehr states that he has not accused the government of interfering in the appointment process, nor has he suggested that the process has resulted in the appointment of unworthy candidates.

The president of the Canadian Bar Association has written to every party leader in Parliament to clarify his comments on judicial appointments, which he says have been mischaracterized by several of those leaders and in news reports. CBA president Brad Regehr states that he has not accused the government of interfering in the appointment process, nor has he suggested that the process has resulted in the appointment of unworthy candidates.

Regehr also points to leaks about applicants to the media as demeaning the selection process, unfairly tainting those who are appointed, and discouraging worthy candidates from applying.

“One of the things that really concerns me is the naming people who submitted their names in the belief that it was a confidential process, and all of a sudden their names are appearing in the media,” Regehr told the CBA National. “It really bothers me that this happened. The potential impact on those individuals – their relationships with their clients, with their co-workers, with their firm – it was highly inappropriate.”

In recent weeks, news stories based on those leaks have fuelled speculation that the government is appointing friends and donors of the party. Members of the Prime Minister’s Office vet candidates who have been recommended to the Justice Minister by the Judicial Appointments Committees (JACs). They also consult with caucus members to learn if they have heard anything about those candidates that could potentially embarrass the government.

Justice Minister David Lametti stated in Question Period that the PMO has not directed any appointments, nor has it declined any of his recommendations.

According to Regehr, the current appointment process has improved compared to what it once was. His concern is that the process remains free of political interference.

“I understand that government … may do some additional vetting – I’m not unrealistic,” says Regehr. “If there is an indication that a person’s enrollment in a particular party or their financial support to a political party becomes a governing factor, that’s of concern, because the idea should be that these judges are being appointed on merit, and that they are reflective of Canadian society.”

Regehr reiterated that political involvement is an indicator of someone who is devoted to public service.

“It would be best if there could be some further affirmation that this is not the governing factor in the appointment of judges,” says Regehr. “I will take those accusations in the House and allegations in the media with a grain of salt. I have a good relationship with Minister Lametti, and I have had a talk with him about this, and he has assured me that this is not the case.”

In an emailed statement to CBA National Magazine, Lametti said he was pleased to read Regehr’s letter.

“I share his concerns about the confidentiality of the process,” Lametti stated. “Those who have chosen to leak the names of individuals who are seeking a judicial appointment are violating the privacy rights of those individuals as well as undermining public confidence in the appointments process. They may also be discouraging qualified applicants from applying.”

Addressing Regehr’s stated concerns about delays in filling vacancies on the JACs, which in turn delay filling vacancies on the bench, Lametti said the government has worked to reconstitute the JACs in jurisdictions where terms have expired. It has also reduced the number of vacancies nationally, he said.

“It is my responsibility to make recommendations to Cabinet for judicial appointments,” said Lametti. “It is one of the most important tasks I have as Minister. I make my recommendations to Cabinet on the basis of merit and the needs of the particular court. I also believe that an effective bench is one which reflects the diversity of the country it serves, and I am proud of the progress we are making in appointing diverse candidates. More needs to be done, but we are on the right path.”

Asked about the vetting by the PMO as a function of the appointment process, University of Waterloo political science professor Emmett Macfarlane says that our political system has rested on a set of executive prerogatives of appointments that provide a direct line of accountability for the appointment itself.

“Modernization of a lot of these processes have included establishing a bit of an independent filter, usually through these Judicial Advisory Committees, that have been set up for a lot of the Section 96 courts, and are probably a reasonable step to the extent that historically there was a lot of patronage in these appointments,” says Macfarlane. “A degree of professionalization of the appointments process was reasonable.”

Macfarlane says he is concerned by some of what has transpired over the past week. People have taken to the idea that an independent filter means the government and the prime minister should be cut out of the equation entirely.

“That’s a bit of a naïve view about the nature of courts and the role of the judiciary in our system, in that we obviously want a judiciary staffed with people who can do their best to recognize their biases, but there’s no such thing as an apolitical court,” says Macfarlane. “In fact, the higher up the ladder you go, the more political the nature of the court’s work gets.”

Macfarlane says that having an elected official who must maintain Parliament’s confidence and is responsible for selecting people appointed to our courts provides some measure of democratic accountability to the third branch of government.

“This is important – the quality of people appointed obviously matters, but the political nature of the role matters too,” says Macfarlane. “That’s not to say we slide off the opposite slope in that we should be talking about electing judges – very few people, rightly, in Canada want to go that route, but the reason that we should want that degree of political accountability is reflected in the nature of judicial decision-making, particularly in areas like constitutional and administrative law.”

Source: In support of a process based on merit

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