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The Supreme Court of Canada in Ottawa on June 8, 2016. (Blair Gable For The Globe and Mail)
The Supreme Court of Canada in Ottawa on June 8, 2016. (Blair Gable For The Globe and Mail)

Liberals overhaul judicial appointment process to boost diversity Add to ...

People who apply to be federal judges will for the first time be asked about their race, gender identity, indigenous status, sexual orientation and physical disability, and this information will be published for both applicants and appointees.

And members of the 17 committees that screen candidates for federally appointed courts and make recommendations to Ottawa will receive training in “unconscious bias” so they do not reject good applicants from minority groups, the Liberal government said on Thursday.

Stressing the importance of bringing greater diversity to the federal bench, the government said it is immediately disbanding all of the remaining Harper-era committees that screen judges, although the members can reapply. Just seven of the committees nationwide were still in operation; the government had let the other 10 lapse. A Globe and Mail review published in April, 2012, found that only two non-white judges had been chosen out of 100 appointments the Conservatives had made.

Related: Canadian courts languish as vacancies on bench remain unfilled

Globe editorial: Ottawa should never have stopped appointing judges

“We’re committed to having a judiciary across the country that reflects the diversity of the country,” Justice Minister Jody Wilson-Raybould told reporters.

In another first for the federal judiciary, the government is inviting non-lawyers to apply to screen candidates. All three of the federal justice department’s nominees to the screening committees will be chosen through a public process, within a tight time frame – the applications are due on Nov. 17. The government also says it will promote transparency by publishing the highly detailed application forms of appointees to the bench, as it did this month with its first Supreme Court nominee, Justice Malcolm Rowe of Newfoundland and Labrador.

The government has been under fire for naming just 15 judges to the federally appointed courts (provincial superior courts, the Federal Court and Tax Court, which have 840 full-time judges) since coming to power last November. Court backlogs have swelled – in Calgary, it takes more than 2 ½ years to start a family or civil case that will take more than five days – and the Chief Justice of the province’s Court of Queen’s Bench, Neil Wittmann, told The Globe last week he found the delays in naming judges “inexplicable.”

At the same time as it announced the changes, the government also appointed 24 judges. In keeping with its focus on diversity, 14 are women and two are of indigenous ancestry. Just three of 15 of its previous appointees were white men.

“I think it’s a great step forward,” University of Calgary law professor Kathleen Mahoney, who specializes in human rights, said of the new process. “The Canadian judiciary is impoverished by the lack of diversity.”

Paul Saguil, a gay Filipino-Canadian lawyer in Toronto, applauded the decision to keep track of data on minority applicants. Groups representing black, Asian and other minority lawyers had long called for such data to be collected and published. He said it is impossible to know how diverse the judiciary is at the moment.

René Basque, president of the Canadian Bar Association, representing the legal profession, said the changes, including the new data collection, are positive. “Open data is a good first step to diversity.”

Adam Dodek, a law professor at the University of Ottawa who has written about judicial appointment processes, also applauded the changes.

“The changes begin to open up what was until now a closed, highly secretive process almost completely controlled by lawyers and judges,” he said in an e-mail. “The inclusion of members of the public recognizes that judges serve the public and that members of the public are most certainly in a good position to contribute to determining who would make a good judge. Perhaps the most important change is the commitment to publicize data about the applicants and the judges. Knowledge is power, and this will allow the public to hold the government to account for its appointments and for the new process.”

The 17 screening committees (at least one in every province) are also being overhauled. Stephen Harper’s Conservative government added a police representative to each committee and took away the vote of a judge. That gave the federal government’s four appointees a voting majority. The Canadian Judicial Council, which is led by Supreme Court Chief Justice Beverley McLachlin, said that made the process appear to lack independence. The Tory government also said the committee could not “highly recommend” anyone; it could only recommend or not.

Under the new system, the category of “highly recommended” is reinstated. (The justice minister will still make the ultimate choice, with cabinet approval.) The police representative has been dropped and the judge will be able to vote, putting the federal members in a minority – three of seven. (The rest are nominated by the provincial law societies, bar associations and provincial government. The Chief Justice of the province or a designate is also a member.)

The government went so far as to scrap a loophole that allowed candidates for a nomination who were already on provincially appointed courts to bypass the need for a recommendation from the screening committees. A Globe investigation found that the Harper government at times used that loophole. The Liberals did the same with some of their appointments this year.

The government said it consulted the Canadian Judicial Council, the Canadian Superior Court Judges Association, the Canadian Association of Provincial Court Judges and the Commissioner of Official Languages on the changes.

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