More male than female applicants for federal benches rated ‘highly recommended’ by JACs in 2022-2023

By Cristin Schmitz

Last Updated: Tuesday, December 05, 2023 @ 3:00 PM

Law360 Canada (December 5, 2023, 11:52 AM EST) -- The Liberal government appointed a few more women than men to the federal benches in the past year, although men were rated “highly recommended” by the country’s 17 independent judicial advisory committees (JACs) a bit more often, according to annual data disclosed by the Office of the Commissioner for Federal Judicial Affairs Canada.

The country’s eight-member JACs, which include representatives of the judiciary, legal regulators and the Canadian Bar Association, vet applications for the federal superior trial and appellate courts (below the Supreme Court of Canada) and rate jurists as “highly recommended,” “recommended” or “unable to recommend.”

In the year ending Oct. 27, 2023, the JACs assessed 315 applicants for the federal benches. Of those, 160 male jurists applied as compared to 155 female jurists — a near-even split (51 per cent versus 49 per cent), according to annual statistics compiled by the federal judicial commissioner’s office.

However, 26 per cent of the assessed male applicants garnered a “highly recommended” rating, as compared to 21 per cent of the assessed female applicants in 2022-2023 — similar to the previous year when 23 per cent of the male candidates were assessed “highly recommended” versus 17 per cent of the female jurists.

Justice Minister Arif Virani

Justice Minister Arif Virani

Notably, however, women were rated qualified for the bench by the JACs in about the same proportion as men in 2022-2023, if one takes into account the combined pool of “recommended” and “highly recommended” jurists.

The total number of men and women deemed qualified was virtually the same — 70 men versus 71 women — proportionally, that means 46 per cent of the vetted female applicants were recommended or highly recommended by the JACs versus 44 per cent of the men.

By comparison, in 2021-2022, 46 per cent of the female candidates versus 40 per cent of male candidates earned “recommended” and “highly recommended” ratings from the JACs.

It is worth noting that, as between male and female applicants for the federal benches, the prevalence of “highly recommended” ratings by the JACs has fluctuated over the years. For example, women jurists came out on top in the reporting year that ended Oct. 27, 2018, i.e. more than 22 per cent of the female applicants (64 of 286) assessed that year were designated highly recommended, versus fewer than 18 per cent of male applicants (61 of 343).

In 2018, women lawyers were proportionally more often rated “recommended” (24 per cent of female applicants assessed versus 18 per cent of male lawyers), while men far outnumbered women as rejected applicants: 64 per cent of male lawyers were deemed “unable to recommend” by the JACs versus 54 per cent of female applicants in 2018.

The JACs found that they were “unable to recommend” 55 per cent of applicants in 2023 — about the same as the year before.

Applications for the federal benches were up 29 per cent in 2023, with 410 jurists (as compared to 318 jurists the year before) applying for the prestigious and secure, but demanding, posts which pay $383,700 annually to puisne judges (who may stay in office until age 75), with a two-thirds-salary defined-benefit indexed pension at retirement.

The Liberal government appointed 87 jurists (45 women and 42 men) in the 2022-2023 period, including naming 68 new appointees to the federal benches, plus 19 other judges (11 men and eight women) who were either appointed or elevated to other courts.

Female jurists outnumbered male jurists among the 68 first-time judges: 54 per cent to 46 per cent. (No applicants for the bench self-identified as gender non-binary.)

The Trudeau government says that it has appointed more than 675 judges since November 2015 (including 49 since Toronto lawyer Arif Virani became justice minister July 26, 2023) — of which more than half are women.

The federal government says it has also increased the representation on the federal benches of jurists who are racialized, Indigenous, 2SLGBTQI+, or who self-identify as having a disability.

During the 2022-2023 period, one Indigenous judge was appointed; nine jurists from visible minorities were appointed; and four 2SLGBTQI+ judges were appointed. No persons with disabilities were appointed.

The data from the Office of the Commissioner for Federal Judicial Affairs Canada indicate that a comparatively high proportion of candidates from underrepresented groups were recommended or highly recommended by the JACs.

Of the 37 applicants who self-identified as being part of a visible minority, 18 (49 per cent) were recommended or highly recommended. The statistics also reveal that more than 12 per cent of the 315 candidates who were assessed said they were part of a visible minority.

Fifteen Indigenous jurists applied for the federal benches in 2022-2023 (four per cent of applicants). The JACs assessed the applications of nine Indigenous jurists and six (66 per cent) were highly recommended or recommended.

Of the six jurists with disabilities who were assessed, half were recommended or highly recommended.

Of a dozen 2SLGBTQI+ applicants assessed, five (42 per cent) were recommended or highly recommended.

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