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

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 professor Erin Crandall, who studies the judiciary, 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.