No more lame excuses
For the relative lack of female judges, Justice Minister Peter MacKay should be taking action
In both his initial comments about the underrepresentation of women in the judiciary, and in subsequent efforts to defend his remarks, Justice Minister Peter MacKay attempted to deflect blame onto law schools, onto the advisory committees that vet judicial candidates and onto women themselves. These attempted deflections, however, are undermined by the facts. And in any event, the minister and his government should be less engaged in finger-pointing, and more actively engaged in advancing the cause of gender parity on the bench.
In the House of Commons, MacKay has sought to clarify his position by asserting that it is not only the government, but law schools and law societies that play “an important role” in bringing more women into the legal profession and, ultimately, the judiciary. This is true, but the insinuation that the lack of female judges can be explained by a lack of female law students and lawyers is demonstrably false.
In the law faculty at McGill University, where I have had the privilege of teaching a great many bright and motivated women, women have made up more than half of all students every year since 1994-95. The one exception was 1997-98, when women were 49.2 per cent of the student body. Nationwide, according to the Association of Universities and Colleges of Canada, women comprised more than 60 per cent of students in social and behavioural sciences and law, a figure virtually unchanged since 2000. Clearly, therefore, the underrepresentation of women on the bench is not due to a paucity of women entering the profession.
Similarly dubious is the minister’s attempt to mitigate his own responsibility for judicial appointments by claiming that the government merely follows “the recommendation of the 17 judicial advisory committees across the country,” because women are severely underrepresented on these committees themselves. Currently, the committees in B.C., Saskatchewan, and western and southern Ontario are made up entirely of men. In Quebec, two of 15 committee members are women; in each of the Greater Toronto Area and Newfoundland and Lab- rador, one of seven; and in Nova Scotia, one of six.
What is more, the federal government is directly implicated in this state of affairs, as it names more than a third of committee members. Indeed, of the 46 current committee members who were named by the government, all but nine are men.
Finally, as for the minister’s assertion that too few women are applying to be judges — in his view, because “women have a greater bond with their children” — there are no available statistics to support his claim. Indeed, even if the bonding theory were correct, where the data does exist, it demonstrates the opposite. For example, in Ontario, from 2010 to 2012, 53 per cent of applicants were women, and there is no reason to believe that federal numbers are significantly different.
MacKay insists that judicial appointments “are based on one criterion and one criteria only, and that is merit and judicial excellence.” Yet, while merit must clearly be a prerequisite, there is no dearth of meritorious women. Moreover, as a whole, the judiciary cannot be truly excellent if it does not reflect the society it is entrusted to judge.
As the Supreme Court has said, judges “have been shaped by, and have gained insight from, their different experiences,” and these “differing experiences appropriately assist in their decisionmaking process.” Moreover, Canadians are more apt to have confidence in our legal system if judges share their variety of experiences and backgrounds.
As for merit, I do not recall having had any difficulty finding meritorious women to name to the Supreme Court when I was justice minister from 2003 to 2006.
Indeed, I was proud to appoint Justices Rosalie Abella and Louise Charron, such that, at the time, Canada had the most gender-equitable Supreme Court in the world. Over the last eight years, however, the Conservatives have made seven Supreme Court appointments — including Marc Nadon — all but one of whom were men.
As such, the minister cannot credibly absolve his government of responsibility, and I encourage him to start bringing forth solutions instead of disclaimers. He can and should lead the charge to make Canada’s judiciary more representative of our population by naming more women to the bench, as well as more aboriginal Canadians and members of other minority groups.
The excellence of our justice system depends on it.