The Trudeau government has made a solid start towards making Canada’s judges more reflective of the population as a whole. But given the track record of the former Conservative government, there’s an awfully long way to go.
In its first crop of 15 appointments and promotions of judges, the government included 10 women and two names from visible minorities. Hardly revolutionary in 2016, but it’s a welcome change from the trend of the past few years.
Women and, to an even greater degree, visible minorities are significantly under-represented among Canada’s judges. Far from recognizing this as a problem and taking steps to address it, the Harper government did virtually nothing during most of its tenure.
During one five-year period it appointed only three judges who were not white out of 200 first-time appointments, according to a survey by the University of Ottawa in 2014. And at one point former justice minister Peter MacKay lamely tried to explain away the shortage of female appointees as the result of women lawyers choosing their children over a demanding job.
The result was that virtually no progress was made in making Canada’s federally appointed judiciary more diverse, and in some areas ground was actually lost. It was a sorry track record, and the Liberals are quite right to address it head on.
Why does it matter? As things stand now, much of the population does not see itself well-represented among one of the most influential and respected groups in society.
That diminishes the legitimacy of the courts in the eyes of many people. And given the over-representation of some minority groups – such as Indigenous and black people – before the criminal courts, those communities are more likely to have little confidence in the system.
This is not a matter of tokenism or of privileging gender and race over legal expertise. It is beyond belief at this point that only white, male lawyers can meet the standard of professional skill, experience and integrity to qualify for appointment to the bench.
No less an authority than Canada’s chief justice, Beverley McLachlin, has underscored the importance of this issue. “Many people, particularly women and visible minorities, may have less than complete trust in a system composed exclusively or predominantly of middle-aged white men in pinstriped trousers,” she told a legal conference in 2012. The Canadian Bar Association has made similar comments.
In fact, there has been significant progress for women on the bench. Women now make up about 40 per cent of lawyers in Canada, and just over a third of federally appointed judges are female.
It’s short of parity, but the trend has been generally going in the right direction. And the Trudeau government’s decision to include 10 highly qualified women among its first 15 judicial appointments sends a strong signal that it is determined to tip the balance.
The situation is far worse when it comes to representation of visible minorities in the judiciary. One survey in 2012, by Ryerson University’s Diversity Institute, found that a paltry 2.3 per cent of federally appointed judges in Ontario were from minority communities, while 15 per cent of practicing lawyers in the province have minority backgrounds.
Other surveys show a broadly similar lack of diversity in other courts across the country, both federal and provincial. The Harper government showed a studied indifference to this state of affairs, and refused requests even to compile relevant statistics.
It’s important, then, that Justice Minister Jody Wilson-Raybould’s first appointees include two with minority backgrounds. Justice Jonathon George, an Ojibway from southwest Ontario, was promoted from the Ontario Court of Justice to the Superior Court in London. And Douglas Mah, who is Chinese-Canadian, was appointed to the Alberta Court of Queen’s Bench. At the same time, Lucy McSweeney, the Children’s Lawyer of Ontario and an activist on LGBTQ issues, was named to Ontario Superior Court.
It will take time to redress the imbalances in the judiciary, and to make sure people from all backgrounds have the expertise, experience and opportunity to take on the responsibility of serving as judges.
But for that to happen, it also takes a government that is conscious of the importance of having a judiciary that is more broadly representative of the whole population. The Trudeau government has made a good beginning.
Liberal appointments signal intent to diversify Canadian judiciary by Sean Fine, June 20, 2016, The Globe and Mail
The Liberal government has begun to change the face of the Canadian judiciary, appointing an aboriginal judge, an Asian-Canadian judge and an 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.
… 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.) [Emphasis added]
One of the comments:
ontariofirst1 2 hours ago
“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.”
Conservatives were afraid? Harper had no fear …did as he pleased. Only a fool would buy the line that the judges appointed by Harper were not conservatives.
New Alberta judges will help ease burden in the court system, justice minister says by Claire Theobald, June 17, 2016, Edmonton Journal
The federal government has made a few long-awaited [Why were Steve Harper /Peter MacKay et al incapable – for years – of accomplishing this simple task?] judicial appointments in Alberta, a move Justice Minister Kathleen Ganley called a step to ease pressure on the province’s overburdened court system.
“I think it will certainly help, anything helps, but certainly they continue to be under significant pressures,” Ganley said. “Even without vacancies, Alberta has the lowest number of Queen’s Bench justices per capita in the country, so we still are under significant pressure.”
Federal Justice Minister Jody Wilson-Raybould announced two appointments to the Alberta Court of Appeal and four appointments to the Alberta Court of Queen’s Bench.
Sheila Greckol, formerly a Court of Queen’s Bench justice in Edmonton, will now serve as a justice on the Alberta Court of Appeal in the provincial capital.
Greckol has also been appointed as a justice of the Court of Appeal for the Northwest Territories and the Court of Appeal in Nunuvut.
Her appointment will fill a vacancy left after Justice Russell Brown was appointed last August to the Supreme Court of Canada.
Greckol’s position will be filled by the appointment of John Henderson to the Alberta Court of Queen’s Bench. Henderson had previously been a provincial court judge in Edmonton.
Sheilah Martin will move from her position as a Court of Queen’s Bench justice in Calgary to the Alberta Court of Appeal in Calgary, replacing Cliff O’Brien, who retired in November 2014.
Martin was also appointed as a justice of the Court of Appeal for the Northwest Territories and the Court of Appeal in Nunuvut.
Gillian Marriot, a lawyer with Widdowson Kachur Ostwald Menzies LLP in Calgary, will take Martin’s place on the Court of Queen’s Bench.
Douglas Mah, who previously served as secretary and general counsel with the Workers’ Compensation Board of Alberta in Edmonton, has been appointed to the Court of Queen’s Bench in Edmonton.
Mah is taking the place of Justice Dennis Thomas, who went into semi-retirement last June.
Avril Inglis, formerly a prosecutor with Alberta Justice in Edmonton, has also been appointed a Court of Queen’s Bench judge in Edmonton, filling a vacancy left after judge Frederica Schultz was elevated to the Court of Appeal in August 2015.
“We have filled the urgent judicial vacancies by drawing on a list of recommended candidates who are of the highest calibre and who are as diverse as Canada. I have every confidence in the judgment of these appointees and in their commitment and ability to deliver just outcomes for Canadians,” Wilson-Raybould said.
Even with these recent appointments, Alberta’s Court of Queen’s Bench has four open vacancies and Alberta’s Court of Appeal still needs two more judges.
Alberta has the lowest number of Court of Queen’s Bench judges per capita in Canada even without these vacancies and would need 11 more to match the ratio of judges to population in B.C.
“It is certainly getting quite difficult for them,” Ganley said.
“Our Court of Queen’s Bench has done a lot of work with scheduling to ensure that they are able to serve the maximum number of people and to ensure timely access to justice. But, really, they’ve gone as far as they can go without additional appointments.
“It is becoming a significant concern here in Alberta and it has been a concern for quite a while.”
This announcement comes ahead of a promised overhaul of the federal process of judicial appointments. [Emphasis added]