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gender imbalance

Supreme Court of Canada judges are shown at a ceremony at the Supreme Court in Ottawa in 2009.CHRIS WATTIE/REUTERS

The appointment of female judges has diminished to a trickle under the Harper government, dashing any hopes that equal gender representation is on the doorstep.

Only eight women have been appointed to the federal judiciary this year, compared to 41 men. Figures for 2010 were only slightly less skewed, with 13 women and 37 men being given judgeships.

The discrepancy is likely to rekindle calls for reform to an opaque process that provides the government with considerable leeway to choose candidates for undisclosed reasons.

"Those are shocking figures," said Elizabeth Sheehy, a University of Ottawa law professor. "This is part of a very ominous pattern for Canadian women. The government owes an explanation to Canadians and especially to women in the legal profession."

There are currently 356 female judges among the total of 1,117 federally appointed judges on the bench. Parity had been within reach until the numbers began to skew under the Conservatives in 2006. In 2005, then-justice minister Irwin Cotler appointed female candidates approximately 40 per cent of the time.

Mr. Cotler said he is disappointed by the plunging proportion of women. "The numbers should leap out and tell you something is wrong here," he said. "It doesn't mean that the people being appointed are not good candidates, but when you have that kind of configuration, something is just not reflecting the proper equities."

Julie Di Mambro, a spokeswoman for the Department of Justice, said 30 per cent of the 420 judges appointed since 2006 were women. She said that figure reflects the number of women who apply for judgeships and are recommended by a committee that vets applications.

In the past, governments could point to a preponderance of men in the legal profession to explain the discrepancy. However, the ratio of men to women has changed so dramatically that females typically outnumber males at law schools.

In Ontario, for example, women comprised just 5 per cent of Ontario lawyers in 1971. By 2006, the figure had risen to 35 per cent. With aging male lawyers retiring constantly, women are likely to go beyond the 50-per-cent point within a few years.

"If anything there is a larger pool of brilliant and exceptionally qualified women lawyers to draw upon since 2005," Prof. Sheehy said. "If the current process of selection cannot deliver anything approaching a representative bench … then it is clear that something is broken."

The federal government appoints judges to superior and appellate courts, the Federal Court of Canada, Tax Court and the Supreme Court of Canada. Provinces appoint judges exclusively to the provincial court bench.

Several provinces have won praise for creating arm's-length committees that interview candidates and prepare a short list from which a provincial attorney-general can choose. The committees are typically composed of representatives from government, the legal profession, the judiciary and the public.

In contrast, applicants for federally appointed benches are designated as "recommended" or "unable to recommend" by a regional Judicial Advisory Committee made up of members of the provincial law society, the Canadian Bar Association, police and judges. Rather than having a short list, the minister of justice can appoint anyone from the pool of recommended candidates.

In 2011, the 17 committees across the country vetted 428 applications and recommended 154 candidates.

University of Toronto law professor Jacob Ziegel said there is an international trend toward more transparent, accountable appointment processes. For example, England and Wales recently instituted an independent judicial appointments commission, partly in hopes of redressing a gender imbalance in which just 16.8 per cent of judges appointed in 2005 were women.

Many U.S. states are seen as leaders in appointing female candidates to the bench, particularly higher courts. In countries such as France, Italy, Spain and Germany, women have made major inroads into the judiciary, but they are reflected mainly at the lower court levels.

Merit will not become the sole appointment criterion until there is an outcry from within the legal community, Prof. Ziegel said. "Not enough senior lawyers are willing to speak out publicly," he said. "Judges, even after retirement, are not willing to condemn a process of which they may appear to have been a beneficiary."