Canadian Lawyer

October 2016

The most widely read magazine for Canadian lawyers

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w w w . C A N A D I A N L a w y e r m a g . c o m O C T O B E R 2 0 1 6 3 E D I T O R ' S D E S K @canlawmag tim.wilbur@tr.com Director/Group Publisher: Karen Lorimer karen.lorimer@tr.com Managing Editor: Tim Wilbur tim.wilbur@tr.com Associate Editor: Mallory Hendry mallory.hendry@tr.com Copy Editor: Patricia Cancilla Art Director: Bill Hunter Production Co-ordinator: Catherine Giles catherine.giles@tr.com Contributors: Shannon Kari, Michael McKiernan, Danny Bradbury, Marg. Bruineman, Jim Middlemiss, donalee Moulton, Geoff Ellwand, Jean Sorensen, Mark Cardwell Canadian Lawyer is published 11 times a year by Thomson Reuters Canada Ltd. All rights reserved. Contents may not be reprinted without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Canadian Lawyer disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Sales and Business Development Business Development Consultant: Ivan Ivanovitch E-mail: ivan.ivanovitch@tr.com Tel: 416-887-4300 Canadian Sales Director, Legal Canada: Brett Thomson E-mail: brett.thomson@tr.com Tel: 416-881-4013 Client Development Manager: Grace So E-mail: grace.so@tr.com Tel: 416-903-4473 Account Manager: Kimberlee Pascoe E-mail: kimberlee.pascoe@tr.com Tel: 416-996-1739 Account Executive: Steffanie Munroe E-mail: steffanie.munroe@tr.com Tel: 416-315-5879 Canadian Lawyer Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON. M1T 3V4 Tel: (416) 298-5141 Fax: (416) 649-7870 E-mail: cl.editor@tr.com Web: www.canadianlawyermag.com Linkedin: linkd.in/179bx8t Twitter: @canlawmag Publications Mail Agreement #40766500 ISSN 0703-2129 © 2016 HST Registration #R121349799 RETURN UNDELIVERABLE CANADIAN ADDRESS TO: CIRCULATION DEPARTMENT One Corporate Plaza 2075 Kennedy RD., Toronto, ON. M1T 3V4 RETOURNER TOUTE CORRESPONDANCE NE POUVANT ÊTRE LIVRÉE AU CANADA AU SERVICE DES PUBLICATIONS One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON. M1T 3V4 Circulation/Address Changes/ Subscriptions Keith Fulford Tel: (416) 649-9585 Fax: (416) 649-7870 E-mail: keith.fulford@tr.com Subscription rates: Canada1 year print and digital $99 plus HST, 1 year digital only $99. Outside Canada 1 year print & digital $99 USD, 1 year digital only $99. For all circulation inquiries and address changes send a copy of your mailing label or labels along with your request in writing to Canadian Lawyer, One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON. M1T 3V4 Indexed in the Canadian Periodical Index ur cover story this month is on the federal process for appointing judges, and as several experts told us, it is a highly secretive pro- cess. But the fact it lacks transparency is not really the biggest problem — it is the lack of diversity once the judges are picked. Like everyone else, we were not provided with reasons why any particular judges were appointed to the bench. With such a mysterious process, it leaves outsiders wondering how issues such as diversity on the bench can be improved. In other hiring contexts — whether it is a law firm, government department or corporate legal department — there are common objec- tions voiced against calls for more diversity. Here is my response to some of the most common ones, which we could apply to the federal process as well: We hire based on merit, not based on quotas. As Lai-King Hum, president of the Federation of Asian Canadian Lawyers, points out in our story, "How do you measure merit? It is a code word and it can be used for exclusion." What those who defend the "merit" approach also seem to imply is hiring decisions have tra- ditionally been based on merit. But that was never the case. White men were tra- ditionally more likely to hire other white men, not just because they were the best candidates for the job but because they could more easily connect with someone like them. They may not even realize they are doing it, but the effect is that the candidate with the most merit was often not hired for the job. There aren't enough qualified candidates. This is a more credible defence, especially in the context of higher courts such as the Supreme Court of Canada, where many judges work their way up, and diversity is lacking on the lower courts as well. In fact, Supreme Court Chief Justice Beverley McLachlin recently made a similar argument, telling the Toronto Star that ". . . 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." But McLachlin is not the one appointing the judges — it is the federal government, which also appoints judges across the country to courts where Supreme Court judges often come from. So the responsibility to create "qualified" candidates rests with the federal govern- ment as well. And the idea of who "qualifies" for a job can be as slippery as the idea of merit. Judges should have a diversity of experiences, and they can come directly from private practice or academia as well as up through the courts, as qualified judges have in the past. It is about culture and "fit," not diversity. This is not generally expressed in the context of the judiciary, but it can be a means of exclusion in many hiring envi- ronments. I recall as a law student having to attend a number of cocktail parties at law firms when applying for jobs, and we all knew we were being assessed for our "fit" in that environment just as much as we were at the formal interviews. A Mus- lim classmate of mine, who didn't drink for religious reasons, wondered whether he was being judged at these parties for not partaking, since the hiring lawyers may have assumed he wasn't drinking just because he didn't "fit." No process can be overhauled when it is shrouded. If diversity is the federal government's goal in the reforms to the appointment process, transparency will serve as a tool to help us root out the objections first, and then truly tackle the problem. Hiring for diversity By Tim Wilbur O

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