Each summer, Pivot welcomes a crop of young law students through our internship program. Women applicants generally outnumber men at a ratio of about three to one. While applicants for unpaid internships at a human rights organization are not necessarily representative, a look at law school admissions today reveals that more and more women are applying and excelling. Yet, when it comes to gender equity in the most prestigious and arguably most powerful positions in the legal system- the judiciary, Canada actually seem to be moving backwards.
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Last week, three new appointments were made to the BC Supreme Court. All three of were men. Three is a pretty small sample size, but a look back over the last few years reveals a troubling trend. Since January 1, 2009, there have been 31 new appointments to the BC Supreme Court, 26 were men. All the appointments (10) in 2011 and 2012 have been men. Almost all of the 31 new Justices are Caucasian.
Only two of the 31 new judges have a family law background, which is particularly troubling given the important role the BC Supreme Court plays in family matters, including responsibility for administering the Divorce Act, and the importance of family law decisions for ensuring the equality and well-being of women and their children. While it is true that judges are from a generation of law school grads that was disproportionately male, this can’t explain the backwards trend we are seeing.
This trend is not limited to BC. The federal government appoints judges to superior and appellate courts, the Federal Court of Canada, Tax Court and the Supreme Court of Canada. In 2005, 40% of federal judicial appointments were women and gender parity seemed to be within reach. However, according to a report by the Globe and Mail in 2011, the appointment of female judges has slowed to a trickle since the Conservatives took office in 2006. It is also noteable that of the last 100 federally appointed judges, all but 2 are white.
The lack of diversity among judicial appointments is even more clearly evident in the make up of the Advisory Committee that recommends applicants for judical appointments to the federal government. At this time, all of the committee members are men.
Today, the typical judicial appointee is a male civil litigator who was previously employed by a large firm. This background is unlikely to provide a lawyer with a lot of experience recognizing the complex dynamics at play in cases of family violence or a deep understanding of the access to justice challenges facing poor and marginalized groups. However, given that judges are tasked with objectively weighing the evidence before them and interpreting that evidence in accordance with the law, does the background a judge really matter?
This spring, retired BC Supreme Court Justice Donna Martinson gave an address to room of 350 people at SFU, titled “Why the Pursuit of Equality for Women Still Matters.” In that address, she reminded us that when she was a new lawyer, there were highly discriminatory laws and attitudes about women’s credibility. For example, a man could not be convicted of sexual assault on the testimony of a woman alone. Supporting evidence was needed, a requirement only applied to women in these cases. At that time, it was not a crime for a husband to rape his wife.
Things have changed in the ensuing decades. With the introduction of the Charter of Rights and Freedoms and its equality provisions, laws were formally changed, often becoming gender neutral. Yet, Justice Martinson pointed out what many of us working in human rights and equality seeking organizations already know - deeply ingrained views about women, their roles and their credibility that informed the law so pervasively and for so long, do not change overnight
The downward trend in the number of women appointed to the bench, not to mention the deep racial disparities in the make up of our judiciary, may be the outcome of the same unchallenged beliefs and attitudes that women and marginalized people have to face whenever they enter a court room. Unchecked biases by those in positions of authority about what experience counts, about what work should be valued, and about who is credible are the fuel that perpetuate systemic inequality, and in Canada today, the impacts of those biases are painfully obvious on both sides of the bench.