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

2016/08/12 Leave a comment

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

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

2016/08/05 Leave a comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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How a new appointment process ushers in Supreme Court transparency

2016/08/04 Leave a comment

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

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

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

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

Errol Mendes on the same point:

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

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

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

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

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Liberal appointments signal intent to diversify Canadian judiciary

2016/06/22 Leave a comment

More analysis by Sean Fine on the Government’s first batch of judicial appointments:

The Liberal government has begun to change the face of the Canadian judiciary, appointing an aboriginal judge, an Asian-Canadian judge and a prominent member of the LGBT community in its first set of 15 appointments – of which just three were white males.

Justice Minister Jody Wilson-Raybould also signalled the government’s intention to take a different approach from its Conservative predecessors by promoting two human-rights specialists, including one who fought for gay rights in a landmark case, to Alberta’s highest court.

The Liberals waited more than seven months to name a single judge to the federally appointed courts (provincial superior and appeal courts, the Federal Court and Tax Court), even as vacancies swelled to nearly 50 from about a dozen last summer before the election was called.

The first group indicates a shift in who sits as a judge in federally appointed courts – and who gets promoted. It includes Jonathon George of the Kettle and Stony Point First Nation in southwestern Ontario; like the Justice Minister herself, he is a second-generation lawyer. He was promoted to the Ontario Superior Court from the Ontario Court of Justice.

Douglas Mah, an Asian-Canadian, joins the Alberta Court of Queen’s Bench.

Lucy McSweeney, the Children’s Lawyer of Ontario, was named to the Ontario Superior Court. She received a professional leadership award in 2013 from Out On Bay Street, a group that helps LGBT law graduates transition to working life.

“I think it’s sending a strong signal that for [the Liberals], merit involves considering the diverse perspectives that people bring to the law, and that includes the backgrounds and the communities they identify with,” said Paul Saguil, a Toronto lawyer and board member of Pride Toronto, who described Ms. McSweeney as a mentor to him. “That signal is important in instilling public confidence in the judiciary.”

Sheila Greckol, one of the two appointees to the Alberta Court of Appeal, represented Delwin Vriend, a teacher who was fired because he was gay, and fought all the way to the Supreme Court of Canada to establish that Alberta’s human-rights code discriminated by excluding gays from its protections. Justice Greckol was a labour lawyer who represented unions. Ms. Wilson-Raybould promoted her from the Court of Queen’s Bench to replace Russell Brown, who was an irreverent right-wing blogger as an academic.

Sheilah Martin, the other Alberta appeal court appointee, was the law dean at the University of Calgary with a long list of publishing credits to her name focused on the equality section of the Charter of Rights and Freedoms. She, too, was promoted from the Court of Queen’s Bench.

During the decade-long tenure of prime minister Stephen Harper, that court became home to small-c conservative judges such as Justice Brown, who referred to Justin Trudeau in a 2008 blog as “unspeakably awful,” and Thomas Wakeling. (Mr. Harper later promoted Justice Brown to the Supreme Court of Canada.) And new judges appointed by Mr. Harper across Canada included barely a handful from visible minorities.

“The Liberals are back to doing what they’ve always done, which is to appoint people who are obviously left-wing,” Tom Flanagan, an adviser to Mr. Harper when he was opposition leader, told The Globe and Mail. He disputed that the conservatives appointed conservative judges. “The Conservatives were afraid to play the game,” he said.

Another observer said the Liberals were playing the same game as the Conservatives, but in reverse. “Individuals with those kinds of backgrounds [as Justices Greckol and Martin] were not being appointed under the Harper appointment process,” University of Alberta law professor Eric Adams said in an interview.

He said the Trudeau government’s first appointments, like those made during Mr. Harper’s decade in power, show “there is more than simply pure merit that’s at play. These aren’t appointments that are being made without consideration for candidates’ previous ideologies. And that’s not a criticism – I want to make that clear. In exercising its power of appointment, governments look for judges who, yes, are talented and fair-minded, but also align with the particular worldview of the government of the day.”

In all three promotions from superior courts to appeal courts, Ms. Wilson-Raybould shut out judges appointed by the Harper government, reaching back each time to the Liberal era of Paul Martin and Jean Chrétien. (The third of the three promotions put Judith Woods, a member of the Tax Court of Canada, on the Federal Court of Appeal.)

Source: Liberal appointments signal intent to diversify Canadian judiciary – The Globe and Mail

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Ottawa appoints 15 new judges to bench amid complaints from Alberta [corrected]

2016/06/20 Leave a comment

Early days and will see whether this trend towards more women judicial appointments continues throughout the year. One visible minority and one Indigenous people also sent signals of increased diversity:

The Liberal government has appointed its first judges since coming to power seven months ago, after a senior Alberta judge complained publicly that the courts were growing desperate, and as vacancies nationwide approach the peak numbers seen in the Harper years.

Of the 15 people appointed, 10 are women, in contrast to the decade-long Harper era, in which just 30 per cent of judges chosen were female [of the judges replaced by the new appointments, 9 were men]. All three of Friday’s appointments to powerful appeal courts – two in Alberta, and one to the Federal Court of Appeal in Ottawa – went to women.

But the appointments barely made a dent for the province with the most vacancies, according to Chief Justice Neil Wittmann of the Alberta Court of Queen’s Bench. He told The Globe in April that the lack of judicial appointments had left his court in “desperate shape.” Of the six Alberta appointments on Friday, two were promotions from his court to the Court of Appeal, leaving the Court of Queen’s Bench with a net gain of just two judges – of which one was filling a vacancy from last summer.

“Marginal at best,” he said in an interview on Friday of the effect of the appointments.

In Calgary, he said, anyone trying to book a family or civil court trial of more than five days must wait 97 weeks, until April, 2018; for a short trial, the wait is 42 weeks. In Edmonton, long trials and short are being booked 66 weeks away. Criminal trials of more than five days are being booked 55 weeks ahead in Calgary and Edmonton, and nearly as many for short trials.

Liberal Justice Minister Jody Wilson-Raybould has promised to make the appointment process more transparent and increase gender and racial diversity.

“As promised, the Government has moved forward on filling urgent judicial vacancies by drawing on existing lists of recommended candidates,” spokeswoman Joanne Ghiz said in an e-mail.

“The Government will be considering ways to strengthen the judicial appointments process, guided by the principles of openness, transparency, and merit. It is also committed to ensuring that Canada’s judiciary truly reflects the face of Canada. Significant reforms of the judicial appointments process will take time, and require appropriate consultations, including with the judiciary, the legal community and the general public.”

Source: Ottawa appoints 15 new judges to bench amid complaints from Alberta – The Globe and Mail

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Disregard for Diversity in Selection of Judges – New Canadian Media – NCM

2015/02/17 Leave a comment

Valid concerns:

Several legal groups are calling on Ottawa for a more accountable process for judicial appointments saying there is an appalling lack of diversity and visible minority judges in Canada.

The Canadian Association of Black Lawyers, the South Asian Bar Association, and the Federation of Asian Canadian Lawyers have joined forces arguing the appointments show a “disregard for diversity” and are calling for change in the selection process.

Last week, the Federation of Asian Canadian Lawyers sent a letter to Justice Minister Peter MacKay asking if the government plans to start collecting information about the makeup of judges.

The letter was sent in response to media reports that found the department of justice doesn’t have any “readily available” information about the diversity of federal judicial appointments from the past 20 years.

It means the government can’t say how many women, visible minorities, French-speakers or aboriginals have been named as federal judges since 1993.

In its letter, the FACL – which represents some 700 members in Ontario, and is affiliated with the National Asian Pacific American Bar Association, which has approximately 40,000 members –  asks MacKay three questions:

  1. Does the government keep statistics on the number of judicial applicants who it says do not “self-identify”?
  2. How long will it take the government to gather this information?
  3. Does the government intend to gather and produce this information so that we may better understand where exactly we stand on judicial diversity in Canada?

The letter also says MacKay has twice declined a meeting with the federation’s president to discuss diversity. Another letter shows MacKay also turned down a meeting last summer with the Canadian Association of Black Lawyers, Global News reported.

Lawyer Anna Wong writing in Law Times said a recent round of judicial appointments by Justice Minister Peter MacKay has put the issue of judicial diversity squarely back in the spotlight.

“The latest appointments follow a trend of predominantly white male appointments that reflect neither the diversity of the population served nor that of the legal profession.

Disregard for Diversity in Selection of Judges – New Canadian Media – NCM.

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Why don’t we have more female judges? – Macleans.ca

2015/02/13 Leave a comment

Irwin Cotler’s efforts to get more information on judicial appointments (see earlier Tories chastised for lack of racial diversity in judicial appointments, Racial Diversity Gap in the Courtroom, Forget MacKay, a woman’s place is on the bench):

The justice minister’s office explains that in the case of Cotler’s most recent question, there simply wasn’t enough time to do what would have had to have been done to answer Cotler’s questions.

In the order-paper question that Mr. Cotler tabled last December, Q-836, he was asking the department to go back through 21 years of information, a great deal of which would require a manual search of the paper records. The department only has 45 days to answer order-paper questions and there was just not enough time.

It does seem like a rather large project.

Cotler and Liberal MP Sean Casey today released a statement calling for greater diversity on the bench and the questions raised by last year’s controversy—whatever Peter MacKay said or didn’t say—still seem worthwhile. While Ontario publishes information on applicants for judicial publications, we have no such data for federal appointments. At what rate are women applying to be federal judges? How has that rate changed over time? And how has the rate of appointment of women changed over time? Those don’t seem like questions for which it would be unreasonable to expect answers to be somehow procured.

I don’t think this is true.

When I compiled a list of women and visible minorities in provincial legislatures, it only took me a week or so to go through names and photos of provincial legislature members. Going through judicial appointments should not be that time consuming (only an average 69 per year between 2006-12).

Why don’t we have more female judges? – Macleans.ca.

Direct link to the table for 2006-12 appointments:

breakdown (pdf)

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Racial Diversity Gap in the Courtroom

2014/06/27 1 Comment

Judicial DiversityFurther to recent news articles on the lack of diversity among federal judicial appointments, largely focused on Minister MacKay’s comments regarding women, good commentary by Tana Turner:

Without the data on how racial minorities and women fare in the hiring process, the argument often is that there is no evidence that there is a problem. Some also argue that low representation reflects the lack of qualified people or the lack of interest in the position.  Without an examination of the diversity gap, it is easy to hide behind the argument that “the problem is them, not us.”

When we look at the data we do have, as reported in the Toronto Star, the analysis does show that there is a racial diversity gap when we compare the representation of racial minorities among judges to their representation among lawyers, at least in Ontario.

Using the federal governments own method for analyzing whether this is an equity-related problem, this gives us a Racial Diversity Gap or severity ratio of .15 for federally appointed judges and .73 for provincially appointed judges. The governments own documents suggest that anything less than .80 is significant and requires that further analysis be conducted to investigate where the problem exists and goals be established to address the underlying issues and close the gap in representation.

Sometimes this investigation does find that applications from certain groups of people are low. But the Canadian Human Rights Commission says that this doesn’t let the employer off the hook. The perception that the workplace is hostile or unwelcoming, or that the process is unfair, are issues that the employer needs to address.

But to get to the point of collecting and analyzing diversity data among federally appointed judges, the Government of Canada, specifically the Minister of Justice, Peter McKay – needs to answer one fundamental question: does diversity among the country’s judiciary matter?

If Peter MacKay doesn’t think that having the best and brightest judges or having a judiciary that reflects and understands the diversity of the Canadian population are important, he should say so. If he thinks either of these are important, he should collect and release the data.

Racial Diversity Gap in the Courtroom – TURNER CONSULTING GROUP INC..

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Forget MacKay, a woman’s place is on the bench

2014/06/21 1 Comment

One of the better rebuttals to MacKay’s arguments on lack of diversity:

Mr. MacKay essentially suggests that female lawyers have no judicial ambition. But where is his proof? The federal government’s Office of Federal Judicial Affairs refuses to publish statistics about the number or breakdown of applicants. It can and it should. Consider Ontario, which does publish such statistics. Between 2006 the year the Harper government came to power and 2012, 299 women applied out of a general pool of 636; in other words, 47 per cent. And Ontario appointed 32 of those women to bench out of a total of 72, or 44 per cent.

Can Mr. MacKay plausibly explain why this pattern would be markedly different at the federal level? We doubt it.

Mr. MacKay’s comments perpetuate tired tropes about women, motherhood and professional ambition. Forget the fact that most women applying for or considering judicial office will be well past the stage where they are balancing a toddler on each hip. Forget that the reference to “riding circuit” dates back to times when judges traveled by horse and buggy some Canadian superior court judges do travel, but none who sit on provincial courts of appeal or the Supreme Court of Canada. Even more troubling is that suggestion that women define themselves by motherhood. Not only is the claim sexist and unsupported by evidence, but it locates the fault for any disparity among women themselves.

Equally disturbing is the government’s apparent lack of interest in other aspects of judicial diversity. Statistics from a 2012 Globe and Mail study combined with Ms. Cairns Way’s recent findings suggest that the appointment rate of aboriginal judges hovers at 1 per cent, while the appointment of members of visible minority communities is an abysmal .5 per cent. Clearly, ensuring that the judiciary reflects the community it serves is not a priority for this government.

Make no mistake – the failure to appoint women to the bench is not “a women’s issue”. It affects us all. It is not the fault of women, either. It is a pattern by a government hostile to the judicial role and apparently indifferent to pervasive patterns of under-representation in our judiciary.

Forget MacKay, a woman’s place is on the bench – The Globe and Mail.

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Peter MacKay tries to explain lack of diversity on federal courts

2014/06/20 Leave a comment

More tone deafness on the Government’s judicial appointments. Only three non-white judges out of 200 appointments (Tories chastised for lack of racial diversity in judicial appointments – The Globe and Mail):

According to people in attendance last Friday, MacKay said that as a new father he understands women’s reluctance to leave their children because, while he didn’t want to downplay the role that fathers play, women have a special bond with their children.

Several of the men and women at the meeting of the Ontario Bar Association’s council described the remarks to the Star variously as “disappointing,” “bizarre,” “frustrating” or “offensive.”

In the first instance, they said the answer failed to address the issue of diversity. Secondly, they suggested it was presumptuous if not insensitive, and thirdly it betrayed a lack of understanding of, or commitment to, the goal of making the judiciary more representative, they said.

Today in a scrum he seemed to dig himself in deeper, to the discomfort of some of the women in the Conservative caucus. But surprising that gender diversity has been the main focus, when ethnic diversity is lacking as well.

Peter MacKay tries to explain lack of diversity on federal courts | Toronto Star.

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