The Harper government’s record on judicial diversity is poor, but it is improving, if only modestly

The Harper government’s approach to judicial appointments has been the subject of much criticism. While there are many episodes to choose from, without question one of the most controversial came as a consequence of the apparent lack of diversity in the Conservatives’ judicial appointments. In June 2014, Minister of Justice Peter Mackay made national headlines for explaining that the reason the government was not appointing more female judges was because women were not applying for the positions. It was a response that hardly anyone found adequate. However, while Prime Minister Harper has unapologetically ignored criticisms on other issues related to judicial appointments (such as a return to an exclusively executive-driven Supreme Court appointment process), the most recent round of judicial appointments for provincial courts suggests that the Conservative government may actually be changing its approach when it comes to diversity on the bench.

So, on the question of women judges appointed by the Conservative government, how fair have the criticisms been? First, a note on demographics seems in order. It was not until the 1970s that women began entering law school in large numbers, so it is true that the potential judicial candidate pool of senior women lawyers was relatively small in past decades. However, by 2011 women made up about 41 percent of lawyers in Canada, and this number continues to grow as every new graduating class of law students contains a majority of women. If there are no barriers to women’s advancement to the courts, the likelihood of women being appointed to the bench would be increasing over time as the pool of eligible candidates grows. In theory, we should expect the number of women appointed to the bench by the Harper government to be the highest in the country’s history.

The reality, however, has been very different. A look at appointments to provincial superior courts, such as the Supreme Court in Nova Scotia and the Superior Court of Justice in Ontario, helps to illustrate this point. From 1997 to 2005, women made up about 35 percent of the appointments by the Liberal governments of Jean Chrétien and Paul Martin. By comparison, from 2006 to July 2015 women have made up about 33 percent of the appointments made by the Conservative government. (Both these calculations exclude elevations and transfers from within provincial superior courts.). While the difference between the parties is not huge, this drop in numbers comes at a time of sustained growth in the number of women lawyers. Since the potential candidate pool for women judges has never been larger, a drop of two percentage points actually constitutes a notable step backward from the goal of gender parity on the bench.

While these numbers are discouraging, recent events suggest that the situation may be improving. In the series of judicial appointments made in June and July before the announcement of the federal election, a new paragraph was added to the standard press release issued by the federal government for judicial appointments:

Appointments to the country’s Superior Courts not only reflect the rich and diverse social fabric of our country, but also take into consideration the merit and legal excellence of each individual jurist. Through these appointments, the Government of Canada has demonstrated an awareness of the need to bring greater gender balance to the bench, to help ensure that the judiciary is more representative of Canadian society.

While this shift in tone, which explicitly acknowledges the importance of diversity and greater gender balance on the bench, is notable in and of itself, more significant is that it was accompanied by a sizable increase in the number of women appointed. Looking at the government’s judicial appointments in 2015 before the addition of this paragraph, the number of women appointed to provincial superior courts was 36 percent. By comparison, of the 28 appointments made since the paragraph’s addition, 54 percent were women.

So how can we explain this apparent shift by the Conservative government? One explanation is it is the right change to make. While there are many reasons for why Canadians should desire a judicial branch that reflects the society it serves, among the most compelling are that it helps to ensure the judiciary’s legitimacy and authority and can help to improve courts by bringing together a greater diversity of decision-makers. That said, the politics behind this shift cannot be ignored. Simply put, an inattention to judicial diversity was a losing battle for the Conservative government. Law associations have spoken out about the importance of judicial diversity, and legal scholars and political opposition parties have been quick to pounce on the government when its appointments have fallen short. The media’s coverage of the government’s judicial appointments also appears a likely motivator. In a study that looks at the English language media’s coverage of eight judges nominated to the Supreme Court by the Harper government (forthcoming in Canadian Parliamentary Review), Andrea Lawlor and I find that the court’s gender imbalance was a major topic of coverage. In other words, the Harper government found itself on the losing side of a battle that it likely had little interest in fighting.

Does the Conservative government’s latest round of appointments mean that the battle for judicial diversity has been won? Almost certainly not. Fluctuations in the number of women appointed to Canada’s courts illustrate how progress toward gender parity is neither steady nor inevitable. The numbers for other underrepresented groups, such as Aboriginal peoples, visible and ethno-cultural minorities, and people with disabilities, are more difficult to calculate; however, a recent study by Rosemary Cairns Way at the University of Ottawa Faculty of Law suggests that their numbers on federal courts remain critically low. So while this recent shift in judicial appointments by the Conservative government is welcome, continued pressure must be applied on whichever party forms government in October to ensure that progress continues.