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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How a new appointment process ushers in Supreme Court transparency

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

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

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

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

Errol Mendes on the same point:

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

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

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

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