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The Supreme Court of Canada. (Sean Kilpatrick/THE CANADIAN PRESS)
The Supreme Court of Canada. (Sean Kilpatrick/THE CANADIAN PRESS)

Cairns Way, Dodek, Mathen and Sossin

Forget MacKay, a woman’s place is on the bench Add to ...

Rosemary Cairns Way, Adam Dodek and Carissima Mathen are professors at the University of Ottawa’s Faculty of Law and members of its Public Law Group. Lorne Sossin is Dean of Osgoode Hall Law School

Friday, June 13, was a bad day for women who aspire to be judges in this country. It was also a bad day for all Canadians, who legitimately look to the federal government and the Minister of Justice for leadership in advancing the values of inclusion and equality in our justice system.

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On June 13, the Harper government announced eleven judicial appointments. Ten were men. The ratio (more than 9:1) continues a disturbing pattern highlighted earlier this year by Prof. Rosemary Cairns Way. Ms. Cairns Way, who examined all of the Harper government’s judicial appointments since 2012, found that the appointment of women continued to lag far behind that of men. In fact, the chief actuary has recently pushed back the date on which he assumes that gender parity will be achieved – to 2035.

The government’s track record continues apace at the Supreme Court of Canada, where since assuming power it has appointed eight justices, seven of them men.

On the same day as he publicized the appointments, Minister of Justice Peter MacKay attended an Ontario Bar Association council meeting. He was asked about the government’s record, not just with respect to gender, but race and aboriginality as well. Ignoring the latter query, Mr. MacKay is reported to have said that women simply are not applying to be judges, because they fear being separated from their children by a hostile “boys club” that will force them to travel to far-flung locations We say: nonsense.

Federal judicial appointments are highly coveted positions. Judges are well-paid (earning more than $300,000 a year), they have a job until 75 and a superb pension. They remain highly respected by Canadians (notwithstanding the government’s long-standing suspicion of them, as exemplified by its recent attacks on the Chief Justice of Canada.) Mr. MacKay essentially suggests that female lawyers have no judicial ambition. But where is his proof? The federal government’s Office of Federal Judicial Affairs refuses to publish statistics about the number or breakdown of applicants. It can and it should. Consider Ontario, which does publish such statistics. Between 2006 (the year the Harper government came to power) and 2012, 299 women applied out of a general pool of 636; in other words, 47 per cent. And Ontario appointed 32 of those women to bench (out of a total of 72), or 44 per cent.

Can Mr. MacKay plausibly explain why this pattern would be markedly different at the federal level? We doubt it.

Mr. MacKay’s comments perpetuate tired tropes about women, motherhood and professional ambition. Forget the fact that most women applying for or considering judicial office will be well past the stage where they are balancing a toddler on each hip. Forget that the reference to “riding circuit” dates back to times when judges traveled by horse and buggy (some Canadian superior court judges do travel, but none who sit on provincial courts of appeal or the Supreme Court of Canada). Even more troubling is that suggestion that women define themselves by motherhood. Not only is the claim sexist and unsupported by evidence, but it locates the fault for any disparity among women themselves.

Equally disturbing is the government’s apparent lack of interest in other aspects of judicial diversity. Statistics from a 2012 Globe and Mail study combined with Ms. Cairns Way’s recent findings suggest that the appointment rate of aboriginal judges hovers at 1 per cent, while the appointment of members of visible minority communities is an abysmal .5 per cent. Clearly, ensuring that the judiciary reflects the community it serves is not a priority for this government.

Make no mistake – the failure to appoint women to the bench is not “a women’s issue”. It affects us all. It is not the fault of women, either. It is a pattern by a government hostile to the judicial role and apparently indifferent to pervasive patterns of under-representation in our judiciary.

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