Pipeline to a Diverse Bench

Women lawyers, between 2006 and 2015, applied for superior court judicial appointments in Canada at roughly half the rate of men in the same time period, reports Cristin Schmitz in the September 16, 2016 issue of The Lawyers Weekly. In her article, Women Not Applying for Federal Benches, Schmitz reports the following previously unpublished statistics on who is seeking federal judicial appointments in Canada:

  • 1,531 women and 3,244 men applied between January 23, 2006 and October 19, 2015
  • 188 women and 396 men were appointed to federal courts during this same decade
  • Judicial advisory committees recommended 1,236 of the 3,003 men screened and 582 of the 1,407 women screened

It is an understatement to say that I find these figures surprising. As a member of the Canadian Bar Association’s Equality Committee for the past three years, I have supported more than one request to the Minister of Justice for the disclosure of just this sort of application data. My expectation was that the data would support a commonly held view that qualified women lawyers are being overlooked in the judicial appointment process and that the gender disparities we see in appointments is the result of discrimination or bias in that process (see, for example this op ed piece from June 2014.)

I’m generally quick to admit when I am wrong. It happens often and I’m okay with that. In this case, I was really wrong. I believed that the data would show women lawyers to be applying for appointment to superior courts in Canada at a rate roughly equivalent to that of men, or at least proportionate to the gender balance in the profession as a whole among lawyers of at least 10 years at the Bar.

This is clearly not the case. Approximately half as many women as men are applying. As Schmitz points out, in Quebec and Ontario, there are more women in active practice than men in the 10-15 years of practice bracket. That’s not the case in Manitoba, where there remains a significant drop-off in gender parity after 10 years of practice (but that’s another blog post).

More questions are raised than answered by these numbers, I suggest. Why are more women not applying? What are the barriers or obstacles, whether perceived or real, to their putting themselves forward? If gender parity on the bench is a goal, shouldn’t we see a higher rate of appointment of those women who are recommended by the judicial advisory committees?

Since these numbers were first brought to my attention last week, I’ve been thinking hard about what’s needed to bring about change and where action can be taken to support greater gender parity on the bench in the federal courts. So long as the process of appointment to the bench, post-recommendation by a judicial advisory committee, remains a behind-closed-doors political process, it is easy to feel there’s little to be done.

But that’s not usually my response to a conundrum such as this. My inherent optimism compels me to develop actionable steps toward the desired positive outcomes.

Here, I am convinced that part of the answer lies in laying the appropriate groundwork. Just as a garden grows better in soil that is properly prepared, so also we need to properly prepare the women in the legal profession for future careers as superior court judges. Lawyers who are interested need to be mentored into position to make their applications in such a way that recommendation to the Minister of Justice by the judicial advisory committee is virtually a certitude.

In Manitoba, we have tried a number of strategies in the past. In the last several years, the Women Lawyers Forum of the Manitoba Bar Association has offered a program entitled So You Want to be a Judge? targeted at, but not limited to women lawyers. These programs have offered participants a chance to hear directly from women on the bench, at all levels of court in Manitoba, as to what is required to get into that position. Panel members in the past have provided helpful tips for completion of the application, for career steps to take in advance of the application, the kind and quality of references provided and more.

This is a good start, but more is required. Whether through direct one-on-one relationships or more of a team approach, I believe there is a need for targeted mentoring of young female lawyers toward careers on the bench. This should include lawyers from all diverse backgrounds so as to also enhance and promote all aspects of diversity in our courts. Through mentoring by senior lawyers and judges, young lawyers can be directed toward choices that will support a future judicial application, whether in respect of political, volunteer and community involvements, job opportunities or other life choices.

This requires those in positions of influence and those with relevant experience in the legal profession, whether on the bench or in practice, to proactively seek out junior lawyers with “judicial potential” and to provide them with such mentorship. These mentors need not only be women, and probably should not only be women. If we as a legal profession want this kind of change, we will need to do what’s required to effect that change.

I agree with Sonia Russo that mentorship acts as a “pipeline solution” to the diversity challenge in the legal profession. She wrote, in Be the Change: How Mentoring Can Improve Diversity in the Legal Professionthat:

In the face of a relative lack of diversity, and a high rate of attrition for female lawyers of color in large law firms, what can the legal industry do to ensure that our profession more accurately reflects the clients we serve? Mentorship is an efficacious, cost-effective solution that addresses the issue of diversity within the legal profession once lawyers are licensed and can act as a pipeline solution itself.

Unless judges and lawyers with power, influence and experience step forward to cut paths and open doors for junior lawyers, those paths and doors will remain closed to many and we won’t soon see the benefits of a judiciary that reflects the diversity of Canadian society.


  1. I’m not sure you’re entirely wrong though.

    If women (and other historically marginalized groups) are not applying in equal numbers, it may be in part because they do not believe that appointments are realistic for them.

    What’s interesting in this data is that despite an equal recommendation (41% of both male and female applicants) by the PACs, the previous government still overwhelmingly appointed male judges, and at a higher rate than the government that preceded them. This remains a troubling legacy that is more pronounced for racialized licensees than it is even for gender.

    The actions by the government also has a strong signalling effect to the bar about who they are interested in appointing. The process, as has been repeatedly stated, is opaque and far from transparent. And as now three cases in Alberta illustrate, we’re not entirely confident that it’s based on merit.

    The role for those of us in the bar is to probably mentor and assist diverse lawyers throughout their careers, and actually help prepare them to be viable candidates for the bench, including assistance in the application process. It means we have to bolster the number of women who are applying.

    But before we can even start to do that, we need to know what the disparities are in the numbers, both in the applications and how many appointments come from those applications. This data has not been historically provided, and it’s unfortunate that the only way that this was revealed was through a media request. One of the systemic changes I’d like to see is that this information is more freely circulated, with the names and identities of the appropriate candidates withheld, of course.