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 O C T O B E R 2 0 1 6 31 Another positive aspect of the provincial court selection process in Ontario is the makeup of the advisory commit- tee. "They make sure it is diverse," she states. The former chair of the Ontario committee, who recently retired from it after more than a decade of service, says the local aspect of each appointment is something he believes is important. "It focuses on a single appointment in a single community," says Hanny Hassan, an engineer by profession who is also the current chairman of the board of governors at Western University in London, Ont. "You are choosing a par- ticular judge, for a particular kind of community," he explains. The committee does its own research to select a short list for interviews. This part of the process can be stressful, even for experienced lawyers, notes Hassan. "You may get questions that appear peculiar to you. But you will know from the questions we ask what the com- mittee is looking for. These are significant decisions and I think feedback is very important," says Hassan, who adds that when he walked out applicants from the interviews, he encouraged them to write down their thoughts about what had just taken place, for their own benefit. Provincial legislation that governs the work of the com- mittee requires that it submit the names of "two or more" acceptable candidates for a position. "The committee likes to keep that number low," says Hassan. In British Columbia, there is also a process where a short list is drawn up from applicants and then some are selected for interviews with the provincial judicial council. The criteria to be selected is not a mystery, says Jennifer Chow, a Vancouver lawyer and member of the council. "It is very clear. It is very transparent," says Chow, who credits B.C. Provincial Court Chief Justice Thomas Crabtree for a focus on increased openness in all areas of the court's operations. — Shannon Kari tions and the lack of transparency impacts the legitimacy of this process, says Gina Papageorgiou, a Toronto lawyer, who was also elected as a bencher last year at the Law Society of Upper Canada. "These are very important decisions. But basically you have an advisory committee and no one knows how judges are selected. You should be looking for people who can listen, who have compassion," says Papageorgiou. Lai-King Hum, president of the Fed- eration of Asian Canadian Lawyers, says merit is a term that is invoked frequently when there are calls for increased diversity in any profession. "How do you measure merit? It is a code word and it can be used for exclusion," states Hum, a Toronto-based employment lawyer. The specific demographics of federally appointed judges in Canada are hard to determine. The federal government only keeps data on gender. In a June 2014 reply sent to the Federation of Asian Canadian Lawyers, in which then-justice minister Peter MacKay indicated he was too busy to meet with the organization, he stated that merit was his "overriding consideration" in judicial appointments. At the same time, MacKay stated in the letter that he hoped to appoint more females to the bench. "I am proud to say that women judges currently represent approximately 34 per cent of the complement of federally appointed judges and I am personally committed to seeing this number increase," he wrote. Of the 103 new appointments MacKay announced after writing this letter and until the 2015 election, females made up 44 per cent of that total. The Conservative government made more than 700 judicial appointments dur- ing its nearly 10 years in power and what surveys have been done suggest that the majority of them came from not only a narrow segment of the Canadian popula- tion but also a narrow segment of the legal profession. Rosemary Cairns Way, a University of Ottawa law professor, examined appoint- ments from the previous two years in a 2014 academic paper she published. Less than one per cent of new appointees were from racialized backgrounds, wrote Cairns Way. Nearly 50 per cent of those appointed were litigators or corporate/commercial lawyers. Almost 20 per cent of appointees were lawyers for the federal or provincial governments, usually as prosecutors (doz- ens of former prosecutors were appointed to the Superior Court by the Conservative government, although 95 per cent of crimi- nal cases in Canada are heard in provincial court). Cairns Way pointed to the United King- dom as a jurisdiction where "ongoing, bona fide efforts" are taking place to diversify the judiciary and that includes collecting more data about the backgrounds of those on the bench. What is taking place in the U.K. should also be implemented in Canada, says Agar- wal. "We need to shine a light on the sta- tistics," he says. That includes more overall data about the pool of candidates who are applying for these positions in Canada, Agarwal says. Increasing the diversity of the judiciary is about "maintaining confidence in the administration of justice," not affirmative action, says Hum. "There are many quali- fied people out there. They just do not have the connections," she suggests. A more diverse judiciary ensures that it can more effectively carry out its duties in a fair and impartial manner, says Lynn "The whole process needs to be overhauled. It is clandestine and in the hands of a select few." Ranjan Agarwal, Bennett Jones LLP

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