Women now make up nearly 50 per cent of full-time judges on Canada’s federally appointed courts, a milestone achievement that until recently seemed a distant dream.
Of 913 full-time judges in the country, 438 are women, according to data from the Office of the Commissioner for Federal Judicial Affairs. That amounts to 47.97 per cent, or just 19 judges short of the historic mark.
And the remaining disparity could soon be erased because more men than women are nearing retirement.
Legal observers say the milestone is deserving of celebration, but that courts have further to go to truly reflect Canada’s diversity.
Ellen Anderson, a lawyer who wrote an authorized biography of Bertha Wilson, the first woman named to the Supreme Court of Canada, said Ms. Wilson would have been happy, but not satisfied.
“I am sure she would be delighted but she would also be rooting for representation for BIPOC [Black, Indigenous and persons of colour] candidates, Indigenous candidates, gay candidates, the whole diversity of human experience,” Ms. Anderson said in an interview.
Federal data show that those groups still lag behind their numbers in the community, though they have made strides in the past few years.
It was Ms. Wilson, appointed to the Supreme Court in 1982, who gave a speech eight years later titled “Will women judges really make a difference?” The answer, says Justice Michele Hollins of the Alberta Court of King’s Bench, is yes, they have.
Justice Hollins was a single mother of two-year-old twins when she studied law in the early 1990s at the University of Saskatchewan.
“I do think it’s incredibly important to have all kinds of perspectives,” she said in an interview. “You’ve got a much better chance of having someone who will understand you.”
Her personal experience “gave me a different perspective than a lot of my classmates, and even my colleagues now, on parenting, finances, employment, education – what it really took to get through those years.”
Beverley McLachlin, who in 2000 became the first woman to serve as chief justice of the Supreme Court of Canada, said: “I think it’s been a huge difference.” Part of that difference was in how the public viewed the judiciary: “They saw it as approachable, as representing them to some extent, and not just a uni-gendered, monolithic-like body of middle-aged, middle-class white men.”
The authority to appoint judges is one of the least-discussed, least-transparent exercises of government power. Non-partisan committees across Canada screen applicants and create a pool of qualified candidates. But it is up to the federal cabinet to choose from that pool.
The federally appointed courts include the appeal courts of provinces, the top trial courts (which go by names such as the Court of King’s Bench, Supreme Court or Superior Court), Federal Court and the Tax Court of Canada.
Since the Liberals came to power and began appointing judges in 2016, with the stated goal of increasing the representation of women and minorities, women have received 56.48 per cent of the 370 judicial appointments, or 209 in total. During that period, women made up 47.8 per cent of the 2,511 applicants, according to data from the judicial affairs office, an agency that provides support services for the judiciary.
The figures represent a sea change from the 10 years of Stephen Harper’s Conservative government, 2006 to 2015, when women made up just 30 per cent of applicants and appointments.
As recently as 2014, 63 men were appointed (including promotions of sitting judges to higher courts), compared with just 26 women. Under the Liberals, men exceeded women in appointments just once, from October, 2021 to October, 2022, by a margin of 30 to 28.
Ms. McLachlin said that when she started out as a judge in B.C. in 1981, “there was a real sense of hope in the air.” Someone sent her a bouquet of flowers from their garden (security had to check out the bouquet). Male colleagues were helpful and supportive.
“I had a wonderful career for a very long time being a judge. It was absolutely the best thing that could have happened to me.”
By contrast, Bertha Wilson found the Supreme Court of Canada a boys’ club when she joined in 1982.
Male judges lobbied one another on the golf course or in other sports arenas, from which she felt excluded. It was one reason she pushed to expand the number of intervenors in Supreme Court hearings, to broaden the court’s knowledge of the social context of the cases before them, Ms. Anderson said. (In one hearing last month, there were 29 intervenors.)
Also, there was no women’s washroom for judges at the appeal court or the Supreme Court when she joined.
Ms. Wilson told Ms. Anderson that she felt “doomed to failure,” because no one could have lived up to the expectations placed on her by her well-wishers.
“Change in the law comes slowly and incrementally. That is its nature,” Ms. Wilson told her.
Still, the difference she made was striking. In Lavallee, a 1990 case, she wrote a judgment for the court recognizing battered women’s syndrome in how self-defence is understood in Canadian law. In Morgentaler, in 1988, she was the only judge to declare that a woman has a fundamental right to choose.
Under Ms. McLachlin’s leadership as chief justice, ending late in 2017, the Supreme Court established a right to physician-assisted dying, struck down prostitution laws as heightening the dangers faced by sex workers, and restored voting rights for federal prisoners.
In Justice Hollins’s view, change on the bench has been slow, given that her law-school class three decades ago was 54 per cent women.
“On the one hand, I’m elated,” she said, referring to women nearing 50 per cent of the federal judiciary, but “it’s sometimes hard not to be discouraged by how slow progress seems to be.”
She said women still face barriers in creating top-notch applications: They are not equal at the partnership tables of law firms, or in terms of assignments, opportunities and seats on corporate boards. And those with children tend to do more of the household work.
“It’s just that much harder for women to advance in their careers at the same pace,” Justice Hollins said.
Rosemarie Davis, vice-president of the Canadian Association of Black Lawyers, said more work remains to be done.
“There are more women, yes, and that’s laudable, but what we’re looking for even within those numbers is more diversity, more women of colour and more women who identify as Black, more women who identify as Indigenous.”