Diversity in GiC appointments – 2016 Update

My latest in IRPP Policy Options:

election-2015-and-beyond-implementation-diversity-and-inclusion-062Following my 2016 baseline study of the diversity of Governor in Council (GiC) appointments (Governor in Council Appointments – 2016 Baseline), I have analyzed 2016 and early 2017 appointments using the GiC appointments index. There has been a strong push towards gender parity but no clear trend with respect to visible minorities and Indigenous peoples.

Baseline data below:

GiC Baseline 2016.010

Source: Diversity in GiC appointments

Laïcité: Couillard reçoit froidement un appel de l’opposition, Philippe Couillard rejette l’accusation de racisme systémique lancée par QS (appointments)

Two articles of interest. First, despite the Quebec shootings, the opposition parties continue to play identity politics, deliberately or inadvertently:

M. Couillard a déclaré dans un point de presse que l’enjeu du port de ces symboles est un phénomène inexistant dans le cas des fonctionnaires qui disposent d’un pouvoir de coercition.

«On est encore une fois en train de mettre sur la table un débat pour un enjeu inexistant, a-t-il dit. Je l’avais dit il y a quelques années: à ce que je sache, il n’y a pas de policier qui porte de signes religieux au Québec. Il n’y en a pas plus aujourd’hui. On est en train d’entreprendre un débat sur un enjeu qui est plus qu’hypothétique, qui est inexistant.»

Selon le premier ministre, l’attentat qui a fait six morts dans une mosquée de Québec, la semaine dernière, ne doit pas faire dévier le débat vers la place de la laïcité dans les services publics.

«Le problème d’horreur qu’on a vécu au Québec, la semaine dernière, c’est le racisme et la xénophobie poussés à la violence extrême, a-t-il dit. C’est ça l’enjeu. Il ne faut pas le retourner et voir qu’on va régler le problème en restreignant les droits de certaines personnes dans la société.»

M. Couillard a tout de même affirmé qu’il sera possible pour l’opposition de discuter de ses propositions lors de la commission parlementaire qui étudie le projet de loi 62, proposant l’obligation du visage découvert dans les services publics.

«On aura des arguments importants, mais je pense que personne ne s’attend à ce qu’on mette nos principes de côté ou qu’on marchande nos principes», a-t-il dit.

Source: Laïcité: Couillard reçoit froidement un appel de l’opposition | Alexandre Robillard | Politique québécoise

Same story in the Globe:  Debate over wearing religious symbols returns to Quebec 

Secondly, the Quebec government comes under attack for the tiny number of visible minority government appointments (the provincial equivalent to GiC federal appointments, where visible minorities form 6.1 percent – see Governor in Council Appointments – 2016 Baseline):

Le gouvernement rejette les accusations de racisme systémique dans ses nominations, mais reconnaît qu’il y a un problème.

Le premier ministre Philippe Couillard estime en effet qu’«il y a beaucoup de progrès à faire au Québec».

C’est Québec solidaire qui a accusé lundi le bureau du premier ministre de racisme systémique dans ses nominations. Selon le parti de gauche, les personnes issues de minorités constituent seulement 2 % des 400 à 500 nominations par année effectuées par le Conseil exécutif.

Dans un point de presse mardi en ce jour de rentrée parlementaire, M. Couillard a dit qu’il ne pensait pas que c’était le cas.

Il a toutefois ajouté qu’il y a beaucoup de progrès à faire et que c’est clair quand on regarde les chiffres d’accès à la fonction publique des communautés culturelles.

La ministre de l’Immigration, de la Diversité et de l’Inclusion, Kathleen Weil, a réagi à l’accusation. Selon elle, il ne s’agit pas de racisme systémique, mais elle a admis qu’il y avait un problème.

Source: Philippe Couillard rejette l’accusation de racisme systémique lancée par QS | Patrice Bergeron | Politique québécoise

 

How do the feds track diversity of appointments? – Policy Options

My latest, analyzing what PCO ATIP documents reveal about their tracking of GiC diversity, with my usual series of charts, including 25 year series data with respect to women’s representation:

As I have been taking a closer look at diversity in Governor in Council and judicial appointments, the gaps in the available data have become much clearer. Documents I received under the Access to Information Act revealed that while the Privy Council Office (PCO) has been systematically tracking representation of women and French/English speakers in these appointments, there has been limited tracking with respect to the other employment equity groups, that is, Indigenous peoples, visible minorities and persons with disabilities.

A number of the documents appear to reveal a certain scramble to prepare this data for the incoming Liberal government.

Source: How do the feds track diversity of appointments? – Policy Options

Government appointments and diversity – Policy Options

election-2015-and-beyond-implementation-diversity-and-inclusion-042My latest piece in Policy Options, reporting on the Liberal government’s commitment on increasing diversity in government appointments (political, deputy minister, judges and heads of mission) – spoiler alert, it largely has.

Source: Government appointments and diversity – Policy Options

Reforms to the Superior Courts Judicial Appointments Process: Diversity element

The operative paragraph on diversity, including reporting:

To promote diversity, the new JACs will be mandated with identifying outstanding jurists from a wide range of backgrounds and practice areas, with a view to having a judiciary that reflects the diversity of Canadian society. JACs will be supported in this task by the diversity-related training provided to members noted above. The collection and publication of statistical data on judicial applicants and appointees will provide transparency and enhance accountability with respect to progress towards a more diverse bench.

Source: Reforms to the Superior Courts Judicial Appointments Process – Canada News Centre

Trudeau shakes up PS top ranks with more young blood (diversity numbers)

With these appointments, the overall DM diversity numbers for the 39  appointments are: 43.6 percent women, 7.7 percent visible minorities:

Prime Minister Justin Trudeau shook up the senior ranks of Canada’s public service with another sweep of promotions for younger executives who are poised to take over as the leaders of the next decade.

The latest round of appointments reflects Privy Council Clerk Michael Wernick’s push to rejuvenate the top ranks of the bureaucracy with a better mix of youth and experience. The prime minister is responsible for all senior appointments but they are typically made on the advice of the clerk.

Wernick has said managing a “generational turnover” is his top priority as the last wave of baby boomers, who dominated the face and character of public service for decades, retires. In speeches, he has exhorted the baby boomers to “move on” and make way for the next generation of leaders.

Friday’s shakeup included three promotions into the ranks of deputy minster and three assistant deputy ministers into associate deputy minister jobs. All are about age 50 — either in their late 40s or early 50s — positioning them for the top posts over the decade. Last year, the average age of deputy ministers was about age 58.

As one senior bureaucrat said, “It looks like 50 is the new 60.”  The public service has aged over the years, including its senior executives compared to the 1970s and ‘8os when the public service grew rapidly and it wasn’t unusual for executives to get their first deputy appointments in their 40s.

The Trudeau government has made more than 30 senior public service appointments, and a significant number have been younger appointments than in previous years or were recruited from outside the public service.

This round of promotions includes: Paul Glover, the associate deputy minister of health, becomes president of the Canadian Food Inspection Agency; Timothy Sargent, associate deputy minister of Finance, is promoted to deputy minister at International Trade; and James Meddings, assistant deputy minister at Western Economic Diversification Canada, moves to the top job at Federal Economic Development Agency for Southern Ontario.

Glover replaces CFIA president Bruce Archibald, who is retiring. Sargent is taking over from Christine Hogan, who was recently named the new World Bank Group executive director for Canada, Ireland, nine Caribbean countries, Belize and Guyana.

Similarly, Meddings replaces Nancy Horsman, who is the new International Monetary Fund executive director for Canada, Ireland, nine Caribbean countries and Belize.

Doug Nevison becomes the European Bank for Reconstruction and Development executive director for Canada, Morocco, Tunisia and Jordan.

The Trudeau government’s appointment of two women — Horsman and Hogan — to the world’s main economic boards is part of its push to ensure Canada’s representatives abroad reflect gender parity and the wide diversity of Canada. About 45 per cent of Canada’s diplomatic postings are now held by women.

Other moves in the Friday round of appointments included Chris Forbes, the associate deputy minister at Agriculture who moves to Finance as one of the department’s two associate deputy ministers. Rob Stewart, assistant deputy minister at Finance, moves up to the associate deputy minister position responsible for G7 and G20.

Nada Semaan, executive vice-president at Canada Border Services Agency (CBSA), moves to Agriculture as associate deputy minister, and Kristina Namiesniowski, an assistant deputy minister at Agriculture, takes over Semaan’s position at CBSA.

Today, more than one-third of the executive cadre are over age 55, with 400 of them over 60. About 46 per cent of all public service executives are over age 50. The average deputy minister is 58; associate deputy minister 54, assistant deputy minister 53.7 and directors and directors-general 50.

Along with the drive to infuse more young talent into the executive jobs, Treasury Board president Scott Brison is committed to making the public service more millennial-friendly to attract more youth.

Source: Trudeau shakes up PS top ranks with more young blood | Ottawa Citizen

Justice minister announces 24 new judges in effort to end national shortage

Finally, the announcement of the new process for selecting federally-appointed judges. No real surprise given the ministerial mandates letters. Still nothing (yet) and regular reporting:

The Liberal government has announced a new judicial appointment process that emphasizes gender and racial diversity.

One of the key changes unveiled on Thursday specifies that governments and independent legal groups that pick the members of the committees that screen candidates “will be asked to take into account the need to ensure [the committees] are representative of the diversity of Canada,” according to a justice department backgrounder. All members of the screening committees will get training on diversity, unconscious bias and assessment of merit, the backgrounder says. A federal agency will keep track of the demographic makeup of applicants. Until now, applications have been tabulated only by gender, not race.

As part of the process, applicants will have to fill out more detailed application forms than they do now. In these forms, applicants will detail their abilities in Canada’s two official languages, and they may be tested on their proficiency.

Another set of modifications will undo changes the Harper government made to the process. The Conservatives had put a police representative on the judicial advisory committees that screen judges for federally appointed courts (such as provincial superior courts, the Federal Court and Tax Court). They had also taken away the vote of a judge on those committees, which had given the federal appointees a voting majority. And the Conservatives had taken away the judicial advisory committees’ ability to “highly recommend” applicants; they could only recommend (or not). The government will remove the police representative, return the vote to the judge and re-establish the “highly recommended” category.

Applicants who applied under the previous process will have to re-apply, but on Thursday, the government announced the appointments of 24 judges under the existing process.

The Liberals have come under fire from the legal community because they appointed just 15 judges in their first year in power, during which judicial vacancies reached 61. That’s more than at any time during Stephen Harper’s decade in power, records show. When Mr. Harper stopped appointing judges in the summer of 2015, before the federal election, there were a little more than a dozen vacancies.

Backlogs in criminal, civil and family cases have risen in some provinces, especially in Alberta and Nova Scotia.

Source: http://www.theglobeandmail.com/news/national/liberals-to-unveil-new-judicial-appointment-process-undo-changes-made-by-harper/article32454733/

And the announcement of 24 judicial appointments:

After months of criticism for not acting fast enough to appoint much-needed judges across the country, Justice Minister Jody Wilson-Raybould announced 24 judicial appointments Thursday.

“We have moved to fill urgent judicial vacancies by drawing on existing lists of recommended candidates,” the minister said in a statement. “The government is confident in the outstanding quality of these appointees and their dedication to delivering just outcomes for Canadians.”

Justice system can’t wait for judicial appointments review, say judges

Trudeau government has backlog of more than 300 appointments

Of the 24 new appointees, 14 are women and two are Indigenous. (No visible minorities are mentioned but need to doublecheck).

Source: Justice minister announces 24 new judges in effort to end national shortage

And for the list (I will be doing an analysis later as am travelling):

Source: http://news.gc.ca/web/article-en.do?nid=1140619 (separate links by Federal Court and Provincial Courts)

How Trudeau can bring diversity to Supreme Court: Ranjan Agarwal

Some good practical suggestions. The ones I favour include publishing the demographics of applicants and focussing efforts on improving the diversity of other judicial level appointments, where the potential pool is larger.

The easing of the official languages requirement is a non-starter, so those with judicial ambitions should make knowledge of both official languages part of their education.

Needless to say – but I keep saying it – the Office of the Commissioner for Federal Judicial Affairs Canada should include in its reporting, the number of visible minority and Indigenous judges, not just women:

So, can this missed opportunity be salvaged? Yes, if the prime minister takes four steps.

First, he should make clear that Justice Rowe was appointed because he was the best Canadian for the job, not the best Atlantic Canadian. In doing so, he would affirm that his next appointment in September 2018 does not have to be from British Columbia (since Chief Justice Beverly McLachlin, who will retire then, notionally holds that seat on the Court), leaving open the possibility of appointing an aboriginal or minority judge from outside B.C.

In particular, the current convention does not allow for the appointment of a Northern Canadian, even though the courts in the territories are some of the most diverse in Canada.

Second, the prime minister should publish demographic statistics of the applicants for this appointment. How many women applied? Self-identified minorities? Aboriginals? Non-Atlantic Canadians? How many judges? How many lawyers? The problem with promising diverse appointments is that the talent pool at the senior levels of the bar or on the trial and appeal benches may simply not be there. Demographic statistics allow the government and the legal profession to consider where more work must be done to create a pool of good, diverse candidates.

Third, the prime minister should revisit (though not necessarily reconsider) the “functional bilingualism” requirement. Potential applicants have two years to immerse themselves in French-language training. But the government should test whether the bilingualism requirement had a disproportionate impact on aboriginal and immigrant communities, where French-language education may not have been a priority for their parents.

Finally, the prime minister should disproportionally fill the 60 other judicial vacancies with qualified women, aboriginal and minority judges. A more diverse Supreme Court is, in many ways, symbolic. The real work of the justice system happens in our trial courts — that may be the only interaction many Canadians have with a judge.

After every hearing, the Court’s justices gather over lunch to discuss their views on the appeal. The appointment of Bertha Wilson in 1982 surely changed the discussion around that table about many issues, including perhaps most importantly abortion, gender rights and spousal abuse.

The appointment of an aboriginal or minority judge will have the same impact, providing a much needed perspective on novel issues facing an increasingly diverse Canada and in an age of truth and reconciliation. Our justice system is the finest the world has ever known. But, sometimes, not only must justice be done, it must also be seen to be done.

Source: How Trudeau can bring diversity to Supreme Court | Toronto Star

Advocates for minority Supreme Court judge disappointed by Trudeau’s pick

Understandable reactions but equally understandable that the government chose to give priority to regional representation and bilingualism.

However, it will be more important to assess the diversity of future appointments to the lower courts, which I expect will include visible minorities and Indigenous peoples (as did with the initial 15 appointments).

And nice to see my IRPP article, Diversity among federal and provincial judges – Policy Options,  continues to provide useful background data:

The Liberal government may have made history by nominating a Newfoundlander to Canada’s top court — but disappointed advocates say a more critical opportunity has been missed to add racial diversity to Canada’s predominantly white judiciary.

“It’s another white male . . . It’s the exact thing we’ve been doing for years,” said Koren Lightening-Earle, president of the Indigenous Bar Association, adding she would have been “borderline happy with any person of colour.”

Prime Minister Justin Trudeau announced Monday that Justice Malcolm Rowe from Newfoundland and Labrador has been nominated for the Supreme Court of Canada. If formally named to the court, it will be a historic first for the province.

However, scholars and aboriginal jurists had hoped Trudeau’s new selection process might set aside the constitutional convention of regionally based appointments, and focus on putting an aboriginal or black judge into the job.

Lightening-Earle said while Newfoundlanders and Labradorians have waited a number of decades for a representative on the court, aboriginal Canadians have deeper historic claims to a place in the judiciary.

“They (Newfoundland and Labrador residents) have been waiting a long time, but we’ve been waiting a little bit longer,” she said.

Lightening-Earle said in a telephone interview a rare opportunity has been missed, and indigenous lawyers are wondering why they bothered applying to the government’s advisory board for the position.

A report in Policy Options magazine estimated earlier this year that just one per cent of Canada’s 2,160 judges in the provincial superior and lower courts are aboriginal, while 3 per cent are racial minorities — prompting a Dalhousie University law professor to describe the Canadian bench as a “judiciary of whiteness.”

Robert Wright, a black social worker who has served on a Nova Scotia board that recommends judicial appointments, said the announcement is a disappointment given the Trudeau government’s earlier signals it might adjust the system.

“There are an increasing number of Canadians who . . . are not caught up in what I call the historical regional nature of the various Canadian identities we used to focus on,” he said in a telephone interview from Halifax.

Wright argues the principle of diversity that lies beneath appointing people from different regions needed to be shifted to recognize the increasing number of Canadians from diverse ethnic and racial backgrounds.

He said as a black Nova Scotian he would have been content to see a black person from any part of the country elevated to the bench, and he also would have been very pleased if an aboriginal judge was appointed.

Wright and Lightening-Earle say the country is losing out on the opportunity to gain from indigenous perspectives on everything from constitutional issues to sentencing to the factors that lead to crime.

Jeffery Hewitt, a legal scholar at the University of Windsor, said he doesn’t accept arguments that there may be a lack of qualified candidates.

“Tell us who applied. Give us the list. Talk to us about . . . whether there were any indigenous people in there?” said Hewitt, a Cree who has provided legal advice to First Nations.

A spokeswoman for the federal Justice Department said the independent advisory board that recommends candidates to the prime minister’s office “will be reporting on this information one month from (an) appointment.”

Hewitt said he’s hopeful that going forward, the Liberals will make more appointments to the superior courts in the provinces.

In Quebec, the Policy Options study noted three visible minority judges out of more than 500, despite bar society figures showing more than 1,800 of its roughly 25,000 lawyers identify themselves as being from visible minority groups. The province said it doesn’t keep figures.

In Ontario, one of the few provinces where the judicial advisory body keeps figures on the lower court appointments, there were 24 visible minority judges out of 334 judges, even though one quarter of the province’s overall population identifies as a visible minority.

There are no visible minorities on the bench in Newfoundland and Labrador, which by constitutional convention was the likeliest province to be tapped for the next Supreme Court of Canada appointment.

Source: Advocates for minority Supreme Court judge disappointed by Trudeau’s pick | Toronto Star

‘There seems to be a paralysis’: Trudeau government has backlog of more than 300 appointments

Almost a year in, one would expect more vacancies to have been filled, given the overall policy – greater diversity – is clear. But I can also see the wish to ensure that the details of the policy and its implementation are addressed first.

One of the key things to look for is the degree of transparency in political appointments, with comparable employment equity reporting to the public service and federally-regulated sectors (telecoms, banking, transport). Currently for judges, only gender is tracked. For other GiC appointments, while gender has been tracked comprehensively for 25 years (as has official languages), there has been little systemic tracking of the other groups (visible minorities, Indigenous peoples, persons with disabilities).

And in some cases, there has been backsliding: the GiC appointment index (top view) has less information than previously, requiring more looking at the individual organizations than before.

For my baseline study, see my short ebook, “Because it’s 2015 …” Implementing Diversity and Inclusion, available either in an iPad/Mac version (iBooks) or Windows (pdf) Version.

Prime Minister Justin Trudeau and his cabinet have accumulated a backlog of more than 300 appointments that are due to be filled, a CBC News investigation has found.

Almost 20 per cent of governor in council (GIC) appointments, which include roles with Crown corporations, port authorities, agencies and tribunals, are currently vacant or occupied by a Conservative appointee whose term is past its expiry date.

Overall, 170 GIC positions are listed as vacant. Another 116 are past their appointment’s expiry date but the incumbent has been allowed to remain in the role until he or she is either replaced or renewed.

Currently, 61 federally appointed judge positions are vacant, including one seat on the Supreme Court of Canada.

In the Senate, 20 per cent of the 105 seats are empty. The government has pledged to fill the 21 spots “by the end of the year.” Three more senators are due to retire in January.

Taking a toll

In some cases, incumbents have been temporarily renewed only a day or two before their appointments were set to expire because the government had not yet launched the process to find a replacement.

For example, Graham Fraser’s appointment as commissioner of official languages, which was set to expire Sunday, was extended Thursday for two months. The government has yet to issue a job posting to find his successor.

The backlog has taken a toll on the operations of some boards and government bodies.

The CRTC hasn’t been able to hold a planned hearing on French music since November because it doesn’t have the necessary three French-speaking commissioners.

The parole board, where 21 per cent of positions are currently vacant, says it’s being stretched, with its remaining part-time board members putting in additional hours to ensure the work is done.

Alberta judges warned a Senate committee in late September that the 61 vacant judge positions could affect court proceedings, saying the province’s justice system is so backlogged they are now setting trial dates for 2018. Last week, an Edmonton judge stayed a murder charge against Lance Matthew Regan, citing delays in bringing the case to trial caused in part by the backlog in Alberta’s justice system.

‘Overwhelmed’

Liberal government insiders privately point to the Prime Minister’s Office and the Privy Council Office as the source of the problem, saying “the centre” has been “overwhelmed.”

The government is confident the problem will be resolved soon. It says the backlog was caused in part by the decision to overhaul the appointments process and bring in a more open, balanced, merit-based system. The new system is now up and running and vacancies are being filled, officials say.

Source: ‘There seems to be a paralysis’: Trudeau government has backlog of more than 300 appointments – Politics – CBC News

Sean Fine of the Globe focusses on the impact on the court system:

While Prime Minister Justin Trudeau is considering his first appointment to the Supreme Court of Canada – a vacancy became available on Sept. 1 – the shortage of lower-court judges may make it difficult for some jurisdictions to meet constitutional guarantees of timely criminal trials.

In July, the Supreme Court of Canada set a deadline of 30 months in superior courts (such as the Court of Queen’s Bench) from the time a charge is laid until the trial is completed. In Calgary, the wait is now just short of 15 months – 63 weeks – to schedule a trial of five days or more. (It can take months from the time a charge is laid until a trial is scheduled.) The situation is about the same in Nova Scotia, where the Supreme Court is now booking criminal trials of five days or more for next fall.

Civil trials, too, face long delays, which Chief Justice Wittmann said is especially hard on families seeking resolutions to legal problems. The lead time to schedule a civil or family trial of five days or more in the Court of Queen’s Bench in Calgary is now 138 weeks – bookings are being accepted for April, 2019. The Court of Queen’s Bench is Alberta’s top trial court, and it has seven vacancies and 59 full-time judges in office, according to the Office of the Commissioner for Federal Judicial Affairs. The province’s Court of Appeal has two vacancies and 12 full-time judges in office.

In Nova Scotia, the Supreme Court (the top trial court) has five vacancies and 31 full-time judges in office. The Court of Appeal has one vacancy and seven judges in office.

“On rare occasions in the past we’ve had to cancel matters. However, this is the first time we’ve had to send out multiple letters the month before suggesting that trial dates be rescheduled due to the shortage of judges,” Jennifer Stairs, the communications director for the Nova Scotia judiciary, told The Globe in an e-mail.

“That’s very difficult on the lawyers and on the litigants who are anxious to have their matters heard.”

B.C. has eight vacancies and 82 judges in office on its Supreme Court, and three open spots and 12 judges in office on its appeal court. Five-day criminal trials are available in January, 2017, while five-day civil trials, other than motor-vehicle actions, can be booked from August, 2017, onward. Dates for five-day motor-vehicle action trials are fully booked for the next 18 months, according to Superior Courts communications officer Bruce Cohen.

The Canadian Bar Association, representing the country’s legal profession, is also upset at the delays in appointing judges.

“We are very concerned. Ongoing judicial vacancies have created significant delays in the court system. These delays have a serious impact on separating families and their children, on criminal justice, on business in Canada,” CBA president René Basque said in an e-mail.

Canadian courts languish as vacancies on bench remain unfilled