National News

Baloney Meter: Female judges under Tories

Justice Minister Peter MacKay addresses a news conference on Parliament Hill in Ottawa on Wednesday, June 4, 2014.  - THE CANADIAN PRESS/Sean Kilpatrick
Justice Minister Peter MacKay addresses a news conference on Parliament Hill in Ottawa on Wednesday, June 4, 2014.
— image credit: THE CANADIAN PRESS/Sean Kilpatrick

By Lee-Anne Goodman, The Canadian Press

OTTAWA - "We are indeed examining all means to ensure greater diversity. What’s been lost in all the clatter is that the number and percentage of female judges has gone up." — Justice Minister Peter MacKay, in an interview with the National Post.

"On the advice of these judicial advisory committees, since 2006, we have appointed 182 highly qualified women to the superior and appeal courts of this country. This is a 17 per cent increase over the previous Liberal government." — MacKay in a statement on his Facebook page.

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MacKay has been in hot water for comments he reportedly made to a group of lawyers last month which some interpreted as suggesting women aren't applying to be judges for fear that circuit-court jobs would take them away from their children.

The Toronto Star said the justice minister made the remarks when asked to explain the dearth of women and minorities on federally appointed courts. MacKay has denied tying the low application rate to child-rearing concerns.

But in a subsequent interview with the National Post, MacKay said he'd been told by lawyers in New Brunswick that women are simply not applying to be judges, particularly circuit judge positions that require travel.

Have the Conservatives indeed done better than the Liberals in appointing female judges? And are women really not applying?

Spoiler alert: The Canadian Press Baloney Meter is a dispassionate examination of political statements culminating in a ranking of accuracy on a scale of "no baloney" to "full of baloney" (complete methodology below).

Each of MacKay's statements earns a rating of "some baloney." Here's why:

THE FACTS

Out of a total of 1,120 federally appointed judges, 382 are women — 34 per cent, as MacKay's office rightly notes.

Judiciary advisory committees provide the government with the names of potential candidates. Federal justice ministers usually appoint judges based on those recommendations, but are not obliged to do so. Some can be dismissed due to red flags, such as concerns about a candidate's party affiliation.

The federal government does not release data on how many women are seeking to become judges, but some provinces do.

Ontario, for example, publicly discloses the gender of applicants, and the data suggests many women are indeed applying. The numbers indicate the rate of applications from women to the Ontario court of justice, for example, has been growing steadily over the last two decades.

"In Ontario in 2012 — the last year we have statistics for — women made up 58 per cent of the applicants," said Erin Crandall, an academic at Queen's University who has been charting the data federally and provincially.

"To suggest that women aren't applying for these jobs seems highly implausible, because they're forwarding large groups to the minister for consideration."

The work, independence and tenure of federally and provincially appointed judges are essentially the same, said Adam Dodek, a University of Ottawa law professor.

Indeed, federally appointed judges earn "significantly more" money, Dodek said. "So the idea that fewer people might apply for a job that pays better is somewhat counter-intuitive."

MacKay has suggested the committees, made up of representatives from across the country, are not recommending female applicants. But the federal government still has considerable discretion over who it appoints to the bench.

There were 515 applications submitted for consideration between November 2011 and October 2012; 221 of them were recommended by the advisory committees, according to data from the Office of the Commissioner for Federal Judicial Affairs Canada.

Of those, only 43 — 19 per cent — were appointed.

Are the Conservatives really doing a better job appointing women than men? No, said Crandall. The number of women in the legal profession has been growing steadily over the past 20 years, increasing the number of would-be applicants, she noted.

"With the Liberal government over the years, federal court appointments at the provincial level were at a rate of 35 per cent," while under the Conservatives, the rate has slipped to 32 per cent, she said.

"So if our goal is to reach parity, then we're not going in the right direction."

MacKay's heralding of the 17 per cent increase over the Liberals is almost meaningless without additional data, Dodek added.

"That could be as a result of more women being appointed to the bench, or it could be a result simply of attrition and far more men retiring from the bench than women. In the absence of statistics, it's hard to say."

THE VERDICT

Both Crandall and Dodek noted that a key figure — the number of female applicants — is missing from the equation.

Crandall rated MacKay's statements as containing "some baloney." While it may be true that female appointments under the Conservatives have increased 17 per cent, it implies the Tories have done better than the Liberals, she said.

"This is not the case. The Liberals from 1993 to 2006 appointed women at a higher rate than the current government."

METHODOLOGY

The Baloney Meter is a project of The Canadian Press that examines the level of accuracy in statements made by politicians. Each claim is researched and assigned a rating based on the following scale:

No baloney — the statement is completely accurate

A little baloney — the statement is mostly accurate but more information is required

Some baloney — the statement is partly accurate but important details are missing

A lot of baloney — the statement is mostly inaccurate but contains elements of truth

Full of baloney — the statement is completely inaccurate

SOURCES

Erin Crandall, Queen's University http://queensu.academia.edu/ErinCrandall

Adam Dodek, University of Ottawa http://www.commonlaw.uottawa.ca/en/adam-dodek.html

The Canadian Bar Association www.cba.org

Department of Justice Canada http://www.justice.gc.ca/eng/

Office of the Commissioner for Federal Judicial Affairs Canada http://www.fja.gc.ca/home-accueil/index-eng.html

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