Liberal appointments signal intent to diversify Canadian judiciary

Theglobeandmail.com
June 20, 2016
By Sean Fine

The Liberal government has begun to change the face of the Canadian judiciary, appointing an aboriginal judge, an Asian-Canadian judge and an prominent member of the LGBT community in its first set of 15 appointments - of which just three were white males.

Justice Minister Jody Wilson-Raybould also signalled the government’s intention to take a different approach from its Conservative predecessors by promoting two human-rights specialists, including one who fought for gay rights in a landmark case, to Alberta’s highest court.

The Liberals waited more than seven months to name a single judge to the federally appointed courts (provincial superior and appeal courts, the Federal Court and Tax Court), even as vacancies swelled to nearly 50 from about a dozen last summer before the election was called.

The first group indicates a shift in who sits as a judge in federally appointed courts - and who gets promoted. It includes Jonathon George of the Kettle and Stony Point First Nation in southwestern Ontario; like the Justice Minister herself, he is a second-generation lawyer. He was promoted to the Ontario Superior Court from the Ontario Court of Justice.

Douglas Mah, an Asian-Canadian, joins the Alberta Court of Queen’s Bench.

Lucy McSweeney, the Children’s Lawyer of Ontario, was named to the Ontario Superior Court. She received a professional leadership award in 2013 from Out On Bay Street, a group that helps LGBT law graduates transition to working life.

“I think it’s sending a strong signal that for [the Liberals], merit involves considering the diverse perspectives that people bring to the law, and that includes the backgrounds and the communities they identify with,” said Paul Saguil, a Toronto lawyer and board member of Pride Toronto, who described Ms. McSweeney as a mentor to him. “That signal is important in instilling public confidence in the judiciary.”

Sheila Greckol, one of the two appointees to the Alberta Court of Appeal, represented Delwin Vriend, a teacher who was fired because he was gay, and fought all the way to the Supreme Court of Canada to establish that Alberta’s human-rights code discriminated by excluding gays from its protections. Justice Greckol was a labour lawyer who represented unions. Ms. Wilson-Raybould promoted her from the Court of Queen’s Bench to replace Russell Brown, who was an irreverent right-wing blogger as an academic.

Sheilah Martin, the other Alberta appeal court appointee, was the law dean at the University of Calgary with a long list of publishing credits to her name focused on the equality section of the Charter of Rights and Freedoms. She, too, was promoted from the Court of Queen’s Bench.

During the decade-long tenure of prime minister Stephen Harper, that court became home to small-c conservative judges such as Justice Brown, who referred to Justin Trudeau in a 2008 blog as “unspeakably awful,” and Thomas Wakeling. (Mr. Harper later promoted Justice Brown to the Supreme Court of Canada.) And new judges appointed by Mr. Harper across Canada included barely a handful from visible minorities.

“The Liberals are back to doing what they’ve always done, which is to appoint people who are obviously left-wing,” Tom Flanagan, an adviser to Mr. Harper when he was opposition leader, told The Globe and Mail. He disputed that the conservatives appointed conservative judges. “The Conservatives were afraid to play the game,” he said.

Another observer said the Liberals were playing the same game as the Conservatives, but in reverse. “Individuals with those kinds of backgrounds [as Justices Greckol and Martin] were not being appointed under the Harper appointment process,” University of Alberta law professor Eric Adams said in an interview.

He said the Trudeau government’s first appointments, like those made during Mr. Harper’s decade in power, show “there is more than simply pure merit that’s at play. These aren’t appointments that are being made without consideration for candidates’ previous ideologies. And that’s not a criticism - I want to make that clear. In exercising its power of appointment, governments look for judges who, yes, are talented and fair-minded, but also align with the particular worldview of the government of the day.”

In all three promotions from superior courts to appeal courts, Ms. Wilson-Raybould shut out judges appointed by the Harper government, reaching back each time to the Liberal era of Paul Martin and Jean Chretien. (The third of the three promotions put Judith Woods, a member of the Tax Court of Canada, on the Federal Court of Appeal.)