Liberals’ judge selection has new bias, lawyers association says

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After appointing five women and no men to the bench in the Maritimes, the Liberal government is being told its commitment to diversity has a large blind spot – but not over the gender issue.

The Liberal government stressed diversity in launching a new process for appointing judges in October, 2016. For the first time, applicants are being asked about their race, gender identity, Indigenous status, sexual orientation and physical disability. Members of the committees that screen candidates are receiving training in "unconscious bias."

Three of the five appointees in the Maritimes since then specialized in insurance law when they were lawyers, the Atlantic Provinces Trial Lawyers Association said in an open letter to federal Justice Minister Jody Wilson-Raybould on Wednesday. And all three worked for the same regional law firm, Stewart McKelvey.

"Their background is representing insurance companies in personal injury claims against the average Joe," said Brian Hebert, president of the Atlantic lawyers association. "We're hoping this isn't a trend."

In Prince Edward Island, six of the eight sitting judges on the Supreme Court and the Court of Appeal are from Stewart McKelvey. The Globe and Mail attempted to reach the managing partner of the firm's Charlottetown office, and other managing partners, without success.

The Atlantic lawyers' group represents plaintiffs in personal-injury cases – that is, individuals who in many cases sue insurance companies. "We represent the average person who has to fight insurance companies," Mr. Hebert said.

"It's a concern when we see judges being appointed from the same practice background, because we believe that as lawyers, we're human, we're influenced by our clients that we serve day-in, day-out, the culture of the firm that we're in, the type of law that we practice."

A spokesman for the Justice Minister said that only two of 12 judges appointed in Atlantic Canada since the Liberals took office in 2015 – a slightly different time-frame from the one referred to in the lawyers' group letter – were, at the time of their appointment, with Stewart McKelvey.

"Minister Wilson-Raybould's appointments in Atlantic Canada and throughout the country are based entirely on merit," the spokesman, Dave Taylor, said in an e-mail.

"They respond to the needs of the courts, as identified through close consultation with Chief Justices. … The minister has been proud to appoint such outstanding candidates to the bench, as our government works toward building a judiciary that fully reflects the country it serves."

Mr. Hebert said the appointees are highly qualified and he is not critical of the quality of appointments. Nor is his group critical of the lack of men appointed under the new process.

Christa Brothers, a former partner at Stewart McKelvey, was appointed to the Supreme Court of Nova Scotia in July; Tracey Clements, a partner at the same firm in Charlottetown, was named to the PEI Supreme Court in March; and Chantal Daigle, who chaired the recruitment office for the Saint John office of Stewart McKelvey from 2013-15, and who became a partner in 2004, was appointed last week to the Family Division of the New Brunswick Court of Queen's Bench, after a year as case management master of that same court.

The other two appointees were not from law firms. One was a long-time provincial court judge promoted to the appeal court in Nova Scotia and the other was a lawyer from the Antigonish Legal Aid Office named to Nova Scotia's Supreme Court.

"The reason we want women on the bench," Mr. Hebert said, "is so that when women's issues are before the court, or when women appear in court, there is a balancing of views. Same thing with race or other areas where we would want diversity. What we're saying is the same considerations apply when you're talking about the professional background of lawyers that are on the bench. There has to be a balance between the large-firm, insurance defence lawyers and other lawyers who are fighting for the rights of plaintiffs."

In its letter, the association said a more diverse judiciary will bring "varied perspectives to the development of the law and the concept of justice itself."