The Power of Perspectives

The Canadian Bar Association

Kim Covert


Equality in judicial appointments

By Kim Covert July 16, 2013 16 July 2013

Much ado was made, ahead of this week’s federal cabinet shuffle, of Prime Minister Stephen Harper’s intention to add women to the ranks of his closest advisers. The reality fell somewhat short of the hype – four new female faces for a total of 12 in the 39-member cabinet, but a net gain of only two, once one counts the losses of Marjory LeBreton and Diane Ablonczy.

Still, with 12 out of 39 members of the female persuasion, the female-male ratio on the new cabinet bests the Conservative party’s own standing in the House (29-167); and the ratio in Parliament as a whole (76-308), even if it’s well below the near 50-50 makeup of the Canadian population.

At one-third of members, in fact, the percentage of women on the new Conservative cabinet is roughly equal to the percentage of federally appointed women on the bench – 31 per cent. Data from the Office of the Commissioner for Federal Judicial Affairs Canada show that women make up 33.33 per cent of each of the Supreme Court of Canada and the Federal Court of Appeal; they comprise 30.56 per cent of the members of the Federal Court; and 25 per cent of the numbers of the Tax Court of Canada.

Maybe the Conservatives like the idea of one-third female representation – a 2011 Globe and Mail article suggests that the federal benches were approaching gender parity until the Harper Conservatives were elected in 2006 and female appointments “diminished to a trickle.”

Part of the problem lies in the makeup of the Judicial Advisory Committees which recommend a pool of candidates from which the justice minister chooses. As of April this year, only 25.64 per cent of committee members were women, and some provinces have no women sitting on the advisory committees at all.

So why does it matter? Surely qualified men can identify equally qualified women?

Studies have shown that employers choose candidates who are like them, and most of the members of judicial advisory committees are middle-aged white men. That’s not to say that unqualified men are being promoted ahead of qualified women, but that qualified women – not to mention qualified members of minority groups – are not being promoted in proportional numbers.

Madam Justice Freda Steel of the Manitoba Court of Appeal says she became a judge as part of a backlash to comments by the province’s then-justice minister in the 1990s, when he said that he’d like to appoint more women to the bench, but there weren’t enough qualified women lawyers. Women’s groups came together to lobby for the appointment of more women – and offered up (figuratively, anyway) binders full of qualified women, Steel among them.

The Women Lawyers Forum is putting forth a resolution for discussion at the August CBA Legal Conference in Saskatoon that would urge newly appointed Justice Minister Peter MacKay to increase the diversity on the JACs, and encourage the committees to proffer a more diverse list of qualified applicants for spaces on the federal bench. It also calls for more transparency in the process – a look at the number of those who express an interest in a seat on the federal bench who identify of visible minorities, which can then be compared with the number of appointments.

The problem is more complex than mere discrimination – systemic or otherwise. While law schools are graduating more women than men, and there are a lot of female lawyers in the junior ranks, their numbers tend to drop off in later years. The pool of senior female lawyers is thus simply smaller than the pool of senior male lawyers, as is the pool of lawyers in other traditionally marginalized communities. But the pools exist.

So maybe the push for diversity on the bench needs to start with a push for diversity at all levels of the firm, and a concerted effort in the profession to keep women from leaving in mid-career.

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The intersection of access and futures

By Kim Covert July 12, 2013 12 July 2013

The legal futures discourse seems to revolve largely around big firms in large cities. But that doesn’t mean that lawyers in smaller centres aren’t paying attention too.

Chris McEwan was called to the bar in British Columbia 30 years ago. He’s a partner at McEwan Law Corp., which has offices in Trail, Castlegar and Grand Forks, and his corporate commercial practice focuses on small businesses.

With his three children following him into the family business – one  is a litigation lawyer in Halifax, one is starting as a student with a national firm in Montreal and one is a solicitor at McEwan Law – the future of the profession is on his mind, McEwan said when contacted by National Magazine for a story in its July issue on the topic.

“I do not worry about their future in the profession; I think that society will always need good lawyers, both barristers and solicitors.”

Where he does see a problem, however, is where futures links with access to justice in small towns.

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The values proposition

By Kim Covert December 19, 2012 19 December 2012

The values proposition

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