Canadian Lawyer

26 S e p t e m b e r 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m sentencing. In the wake of the decision regarding Justice Marc Nadon's eligibility to sit on the top court, the criticism of the Supreme Court of Canada reached previously unthinkable levels with the minister of justice and Stephen Harper himself weighing in after the fact with their own attack on the highly regarded Chief Justice Beverley McLachlin (herself a Mulroney appointment). With bar associations, law school deans, and the legal community (here and abroad) united in defending the chief justice, the Harper government was left sullen and with its fingers badly singed, reconsidering the wisdom of frontal assaults on the court. The muttering from the grassroots and echoed by many Conservative MPs is about "judge-made law" or "unelected, unac- countable judges" thwarting the supreme will of the people as expressed in Harper's 2011 majority government. An appreciation of the role of the courts probably isn't helped by the fact the Harper government has one of the lowest, if not the lowest, number of lawyers sitting on government benches in Canadian history. Against this background it is hard to understand how the government and the minister of justice failed to appreciate the heightened scrutiny their relationship with the courts attracted. While other countries followed the World Cup, for a time, Can- ada's national pastime became evaluating judicial appointments. Fun with numbers I t's easy to get bogged down in statistical analysis, but num- bers do tell the story. To counter accusations that women were being pointedly passed over for judicial appointment by the Conservative gov- ernment, MacKay said 30 per cent of the judicial appointments made by the Conservatives since 2006 have been women, and now make up 34 per cent of the sitting federal judges. This, he said, is a 17-per-cent increase in women compared to when the Liberals were in power. To clarify, the recent Conservative governments haven't appointed 17-per-cent more women judges. The 17 per cent refers only to the size of the increase in the number of women appointed to the bench. In the eight and a half years from Jan. 1, 2006 to June 1, 2014 women sitting on the federal benches increased by five per cent (to 34 per cent from 29) of the total. Just to further muddy the statistical waters, according to the Department of Justice, 182 women have been appointed as judges by the federal govern- ment out of a total of 602 appointments made since 2006. That is an average Conservative appointment rate of 30-per-cent new women judges while the total of all federally appointed women judges now stands at 34 per cent. How we reached a 34 per cent total with an average 30-per-cent appointment rate is a bit of a mystery. No one is quite sure, includ- ing the academics who have studied the matter, but it is suggested it has less to do with increased women appointees and more to do with older men retiring from the bench in greater numbers. At least the government publishes numbers on gender rep- resentation on the bench. As we will see, the government stead- fastly refuses to compile or make available information about who actually applies for a judicial appointment or the ethnicity or diversity of the final appointments made. Stepping up to the bar A s MacKay noted, 30 per cent of the judicial appointments made by the Conservatives since 2006 have been women (compared to 40 per cent in the Liberals' last year in power), but that leaves the larger question of why federal judi- cial appointments of women continue to move at a glacial pace, let alone approaching gender parity. Every play has a second act, and MacKay's began when he was asked this very question. The fog of politics has descended on what MacKay actually said at a June 13 meeting of the Ontar- io Bar Association, with attendees and the minister disagreeing. According to the Toronto Star, when asked to commit sociology and explain the lack of women and visible minorities on feder- ally appointed courts, MacKay said they just "aren't applying" for the jobs. He reportedly further speculated that women might fear the "old boys" network of the judiciary and that they could be handed circuit-court work that would take them away from their homes and families. Perception is reality in politics, and even though MacKay took to Facebook to deny he had said anything sexist or insensitive in his remarks at the OBA meeting, the perception was that he was blaming women for not stepping up to the bar (or bench, in this case). MacKay said his comments were in fact meant to encourage women to apply for judicial appointments in greater numbers. The problem is, what are those numbers? Ignorance is bliss T he Office of Federal Judicial Affairs is responsible for the administration of the federal judiciary and appointments process. It does not report data about the gender and eth- nicity of judicial applicants. It collects gender data via a tick- box on the application form, but unlike the province of Ontario or the United Kingdom, the Canadian federal government does not release that information. The non-reporting of this basic information makes it impossible to challenge MacKay in his assertion that the main impediment to more women judges is that not enough women are applying in the first place. Anec- dotal information from various legal groups and associations The 17 per cent refers only to the size of the increase in the number of women appointed to the bench. The recent Conservative governments haven't appointed 17-per-cent more women judges.

• Cover