Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m S e p t e m b e r 2 0 1 4 27 suggests this is not true and women are, in fact, applying in ever-increasing numbers. With regards to visible minorities, the application process leaves any questions of ethnicity to the applicants to spontane- ously self-identify entirely at their option. The downloadable judicial application form gets all the way to page 10 before it half-heartedly asks: OPTIONAL Given the goal of ensuring the development and mainte- nance of a judiciary that is representative of the diversity of Canadian society, you may, if you choose, provide infor- mation about yourself that you feel would assist in this objective. There is no obligation to do so. (emphasis theirs) By the way, did we mention it is optional, and you may, if you choose, provide it, but there is no obligation to do so? When challenged, as it recently was by the Canadian Asso- ciation of Black Lawyers, the Commissioner for Federal Judicial Affairs, in a letter, pointed to this question on the application form as proof of its seriousness about diversity. There is, how- ever, no statutory requirement or published policy in the federal judicial appointments process to consider the gender or ethnic- ity of the applicants or the lack of diversity on the bench. Instead, as MacKay repeats on his Facebook page, judicial appointments are "ultimately based on the only truly important criteria applied to all our appointments: merit and legal excellence." Not collecting data is a good way to not have to face the consequences of policies or actions. Dr. Erin Crandall, a leading expert on the judicial appointments process at Queen's University, observes other jurisdictions that collect and publish gender and ethnicity data about those applying for judicial appointments — like Ontario and the U.K. — show far greater progress in achieving better representation. Another academic who has spent countless hours trying to construct the data the judicial appointment process refuses to collect or release is University of Ottawa law professor Rosemary Cairns Way. She says her careful review of the data sug- gests a "pattern of deliberate disregard" for diversity on the bench, which resulted in her calculation that just three of 191 federal judicial appointments (1.6 per cent) across Canada have gone to non-white applicants in the past five years. Ontario does publish the statistics relating to provincial judicial applicants' gender. Between 2006 and 2012 in Ontario 299 of the 636 provincial judicial applicants were women (47 per cent). Of the total 72 appointments made from this pool, Ontario appointed 32 women to the bench (44 per cent). Other than Ontario, only B.C. collects similar stats. The B.C. Judicial Counsel's latest report for 2012 shows of judicial appli- cants 53 per cent were male and 47 per cent were women. Of the appointments made 58 per cent were men and 42 per cent were women. Both Cairns Way and Crandall suggest Ontario's better track record can be partly attributed to the greater transparency of revealing who is in the original application pool — something the federal government refuses to do. In short, when a govern- ment is more transparent at the early stages, it produces better outcomes or will be held more accountable for poor outcomes. Selecting the selectors O nce applications for a judicial appointment are received they are sent to one of 17 regional federal judicial advi- sory committees under the Commissioner for Federal Judicial Affairs Canada with the responsibility for the adminis- tration of the appointments process on behalf of the minister of justice. There are 17 regional appointments committees — one in each province and territory with three in Ontario and two in Quebec, plus one for the Tax Court of Canada. In late 2006, the Conservative government rewrote the rules for the composi- tion of the committees. Now each regional committee consists of eight members: • a nominee of the provincial or territorial law society; • a nominee of the provincial or territorial branch of the Canadian Bar Association; • a judge nominated by the chief justice of the province or by the senior judge of the territory; • a nominee of the provincial attorney general or territorial minister of justice; • a nominee of the law enforcement community; and, • three nominees of the federal minister of justice representing the general public. In 2006, the Conservative government added the nominee from the law enforcement community, who is also chosen ad OnTArIO 2006-2012 B.C. 2012 AppliCAnTs AppliCAnTs AppoinTmenTs AppoinTmenTs 299 of 636 provinCiAl judiCiAl AppliCAnTs were women (47 % ) 47 % of judiCiAl AppliCAnTs were women 32 of 72 AppoinTmenTs To The benCh were women (44 % ) 42 % of AppoinTmenTs were women 47 % 47 % 44 % 42 % 299 32 72 636

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