Justice Minister Peter MacKay has done Canada’s legal community a favour by starting a fresh conversation about diversity among one of the most influential groups in society – judges. Too bad he did it in such a clumsy and muddled way.
It started last week when the Toronto Star’s Tonda MacCharles reported on a meeting that MacKay held with lawyers in Toronto under the auspices of the Ontario Bar Association. He was asked about what the government was doing about the lack of women and visible minorities among federally appointed judges. Instead of addressing the issue head-on, MacKay went off on a tangent about women’s attachment to their children.
Women “simply aren’t applying” to be judges, he said, according to participants in the meeting who later spoke to the Star. Some, he went on, fear that an “old boys’ network” on the bench will send them off on circuit work, travelling around to regional courthouses away from their children.
Questioned in Parliament, MacKay dug in further, saying: “At early childhood, there’s no question I think that women have a greater bond with their children.” More women have to apply to be judges, he said. “It’s that simple.”
In fact, it’s not that simple at all. Regardless of how close women are to their children, it has nothing to do with how many end up as judges. Worse, the minister ducked an opportunity to address an even more troubling situation: the gross under-representation of visible minorities in Canada’s judiciary.
For women, the story is actually not all bad. Just over a third of judges on federally appointed courts – 382 out of 1,120 – are female. A 2012 study by Ryerson University’s Diversity Institute noted that is not far off the proportion of lawyers who are women (40 per cent). And it represents solid progress over the past few years.
Still, Ottawa does not make public the number of women who apply for positions as judges. If MacKay is going to claim that not enough put their names forward, he should release the evidence.
The absence of judges from visible minority communities is even more pronounced. The same Ryerson University study found that while 15 per cent of practising lawyers in Ontario are minorities, a paltry 2.3 per cent of federally appointed judges are from those communities. The situation is somewhat better for provincially appointed judges: 10.9 per cent of them are visible minorities.
Another 2012 survey, by the Globe and Mail, found that fully 98 of the 100 judges appointed by the federal government in the previous three and a half years were white.
It’s not credible that only white lawyers can meet the standards of legal skills, integrity and experience needed for appointment to the bench. And it’s important that the men and women who interpret our laws better reflect our communities. Ottawa’s system for appointing judges – complex, opaque and subject to political manipulation – is not producing the best results in this area.
That’s a situation to which MacKay could usefully address himself, instead of speculating to no good end about how close women are to their children.