Is Peter McKay right when he says not enough women apply for the bench?

There has been a flurry of media commentary about whether or not justice minister Peter MacKay is telling the truth when he says that not enough women apply to become judges. The problem, of course, is that by refusing to release the applicant lists, the federal government is playing a shell game.

However, lack of access to the department of justice’s data does not prevent a critical analysis of what was said and whether it bears scrutiny. For starters, bar associations are excellent sources of information about the judicial application process since they have historically been involved in helping to put together the lists of qualified applicants.

Evidence from bar associations

Let us take Quebec as an example, given that it is one of the larger jurisdictions in the country. Yesterday on CBC’s Radio Noon Montreal, incoming Bâtonnier Bernard Synnott pointed out that the majority of law graduates in the province are women, and that Québec’s bar association is an active participant in developing lists of qualified lawyers for submission to the federal selection process. And that women figure prominently on those lists.

Ontario bencher Avvy Go has flatly denounced Mackay’s comments.

Canadian Bar Association president Fred Headon also cast doubt on the legitimacy of MacKay’s claims. Statistics are preferable to stereotypes.

Stereotypes or statistics?

What about the special bond between mothers and young children, which MacKay blames for the lack of women applicants? It may be a relevant factor for younger women in the earlier stages of their careers. But judicial applicants need at least ten years on the bench and, overall, they tend to be mature lawyers for whom the aforementioned bonds are, on the whole, a thing of the past, at least as regards the time demands of very young children and obstacles to a busy professional life.

Maybe MacKay was trying to say that the special bonds between women and young children somehow prevent women from advancing their careers at the same pace as men, and create obstacles for women to end up on the lists of eligible judges. If that is true, it is difficult to understand how the large number of women judges who are already sitting and have children ever made it.

More troubling is the stereotyping that suggests that women with young children cannot handle the pressures of demanding jobs. These types of comments were perhaps more common in the mid-20th century, but they are surprising now, even from a Conservative.

Many women lawyers with young families especially litigators, have to manage much more demanding schedules than judges. This is not a point about the amount of work involved, but rather about the unpredictable nature of the practice of law, the necessity of responding to client demands that are not restricted to 9-to-5, and the urgency of certain types of legal procedures like injunctions.

In the (apparently) unlikely event that Mr. McKay’s assertions turn out to be true, one might well ask oneself why it is that women are not applying to become judges under the current federal regime. This government that has attacked the right to pay equity, marginalized the Canadian Charter of Rights and Freedoms, and defunded prominent rights organizations — especially legal organizations — working for equality for women and girls. It has also openly questioned the integrity of the judiciary in the Nadon affair and systematically eroded the role of the judiciary in areas such as mandatory minimum sentencing that have, for many good reasons, been in the bailiwick of the judicial branch of government for decades if not centuries.

In the end, there are only two possibilities. The first is that the Minister of Justice has actively misled Canadians on the fundamental issue of gender equality, in which case he should resign.

The second is that he is telling the truth. If so, one might wish to inquire whether there is something about the Harper government that has made it singularly unattractive for women to apply, knowing that this is the government that has diminished not only their role in public life but also the role of the judiciary in a modern democratic society.

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Categories: Discrimination

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