encourages employers covered by the Act to collect data in order to implement employment equity
(s. 9) with respect to the four groups designated by the legislation: Aboriginal peoples, women,
persons with disabilities and members of visible minorities (s. 2). Section 3 defines visible minorities
as
“
persons, other than aboriginal peoples, who are non-Caucasian in race or non-white in colour
”
.
62
Lawrence,
id.
, at 217, n. 70, describes her unsuccessful attempt to collect
“
aggregate
numbers or percentages of applicants/appointees who are members of underrepresented groups (First
Nations, Visible Minorities, Persons with Disabilities)
”
through a freedom of information request.
For a sustained critique of the failure to track statistics, see
“
Data and Diversity
”
,
supra
,
note 16.
63
Sossin,
“
Accountability
”
,
supra
,
note 9, at 26.
64
I decided to examine only initial appointments to the bench by the federal government.
I did not consider elevations from provincial courts to federal courts, or from federal trial courts to
appeal courts. See note 23,
supra
, for comments on provincial appointments. I recognize that my
choice may fail to count demographic changes to the federal courts which reflect elevations from the
60
SUPREME COURT LAW REVIEW
(2014), 67 S.C.L.R. (2d)
1. Gender
As of May 1, 2014 there were 1,121 federally appointed judges in
Canada. Of those judges, 382 (34 per cent) are women.
65
Thirty-two per cent
of trial judges are women. Forty per cent, or 43 of the 107 recent
appointments made in the last 23 months, were of women. This
percentage significantly outstrips the current overall percentage of
women on the bench, and appears out-of-step with prior practices of the
government. In November 2011, Kirk Makin suggested that parity had
been “within reach” until the 2006 change in government.
66
In 2011, a
Department of Justice spokesp
erson said that “30 per cent of the 420
judges appointed since 2006 were women”
, a figure which she claimed
was statistically reflective of both the applicant pool and the pool of
recommended candidates.
67
There is, of course, no way of confirming
these claims. And they suggest that the government is content to conform
with a formal “trickle
-
up” approach to appointment, notwithstanding the
exponential increase of women into the legal profession
68
as well as the
provincial courts. I decided to do this for a number of reasons: (1) I wanted to add my statistics on
racialization to
The Globe and Mail
statistics and the research done by
The Globe
did not consider
elevations; (2) elevations to the superior court which increased the demographic of racialized judges
on the superior court would only end up in an overall increase in judicial diversity if the province
replaced the provincial appointee with another racialized individual. There were no guarantees that
would occur, and I was unable to do the research necessary to determine if it had. As well, the
original appointment decision reflecting a commitment to diversity was not a federal government
decision, although the elevation may have been. I was also interested in considering professional
