OTTAWA - When Avvy Yao-Yao Go read Justice Minister Peter MacKay’s claim that women and visible minorities are underrepresented on Canada’s courts because they don’t apply for the job, she was furious.
Go, a director at the Metro Toronto Chinese and Southeast Asian Legal Clinic and a practicing lawyer for the past 23 years, says it’s not true. She knows “worthy” candidates who have applied, and so has she.
Go submitted her name for a federal judicial appointment two years ago and again this year. She was worried by cuts to legal aid that might threaten her own job, and on another level, she says she believed it is up to visible minority lawyers to throw their hats in the ring.
But Go, who was recently named to the Order of Ontario, heard nothing back except that her application would be held “in the system” for two years. She suspects her past criticism at parliamentary committees of the Conservative government’s policies on immigration, refugees and poverty reduction mean she has no chance of an appointment.
Nevertheless, on Thursday, she took the step of going public in a letter to the Star because “I was just so pissed off” at MacKay’s comments reported in the Star.
“Perhaps MacKay is counting on the fact that most women and racial minority lawyers who have applied for judicial appointment wouldn’t dare come out to prove him wrong,” she wrote.
“So let me be the first to acknowledge that I, too, have put in an application as an act of challenge with no expectation of ever being appointed, not only because I am a woman of colour, but more importantly, because my politics are not in sync with the current government.”
Go’s comments reflected a storm of criticism that erupted after the Star reported MacKay’s response to a query about the lack of diversity on the bench.
Last Friday, he told the Ontario Bar Association in a “private” meeting that women and visible minorities “simply aren’t applying,” according to those in the audience. Then he addressed only the issue of gender, saying women fear an “old boys” network on the bench would dispatch them on circuit work to hear cases in courthouses across a region — a prospect he described as unappealing for women with children at home.
Unbowed Thursday, MacKay doubled down on his comments. “At early childhood, there’s no question I think that women have a greater bond with their children. As for more women applying to be judges we need more women applying to be judges — it’s that simple,” he told reporters.
In the Commons, the NDP and Liberal parties hammered the minister who is in charge of up to 50 appointments a year to senior trial and appellate courts across Canada.
The Liberals called his remarks sexist and demanded an apology, while the NDP’s Megan Leslie said she wasn’t seeking an apology but a clear plan of action to increase the numbers of women and visible minorities on the bench.
MacKay insisted his remarks had been “mischaracterized” as sexist and said the government was not solely responsible for advancing the cause of underrepresented groups.
“With respect to minorities and women being promoted to the judiciary, I think we can all agree that government of course plays an important role in that, but so, too, do law schools, so, too, do law societies. That is exactly the message I was bringing to the Ontario Bar Association.”
Lai-King Hum, president of the Federation of Asian Canadian Lawyers, said MacKay’s stance is “shocking,” especially since she formally wrote him and his office about the issue last month.
Neither MacKay, his office, nor the commission for federal judicial affairs ever responded to the Federation’s concerns, Hum said Thursday.
The federal government is responsible for the more than 1,100 judges who sit on federally appointed courts in Canada.
While it tracks the number of applications overall, it does not document publicly how many are from applicants who represent visible minority populations, nor does it publish the number of sitting visible minority judges. It does, however, document the number of women: 382 out of an overall total of about 1,100 sitting judges.
The federal judicial affairs office website indicates Ottawa makes about 40-50 federal judicial appointments a year, and received about 500 applications in 2011-2012.
It said the applications are screened and ready for vetting by the 17 judicial advisory committees across Canada within about three months. They may be held on file for two years, at which point applicants must re-apply.
University of Ottawa law professor Rosemary Cairns-Way has compiled figures, suggesting there is a “pattern of deliberate disregard” for diversity on the bench.
Cairns-Way told a symposium in Ottawa last month that she looked at 107 federal judicial appointments between April 2012 and May 2014, of which she said 90 were white. She could not reach a conclusion on the racial background of 16 and just one was a “racialized person.”
By combining her data and information in a report in the Globe and Mail two years ago, she said she concluded just three of 191 federal judicial appointments in the past five years across Canada were non-white judges.
Lawyer Douglas Grenkie, a past president of the Ontario bar association and a member of provincial judicial advisory committees for more than 16 years, said he had asked MacKay at last Friday’s meeting if the government would agree to be bound by the list of candidates submitted by the federal judicial advisory committees, as is the case with provincial court nominees.
Grenkie said the provincial court process is superior to the secretive federal one because it involves face-to-face interviews with would-be judges, a broad-based screening panel which almost always comes up with unanimous recommendations on the best candidates.