But in Canada, the most recent demographic statistics on federal judicial appointments and the professional competence and character assessments made by the Trudeau government’s non-partisan judicial advisory committees (JACs) indicate that diversity has gone hand in hand with “merit.”
Merit or worthiness for the bench are defined by the incumbent Liberals as including “sensitivity to and understanding of gender, racial equity and Aboriginal justice issues, an appreciation of social issues, sensitivity to changes in social values and receptiveness to new ideas that are constructive to the public good.”
The latest figures published on the website of the Office of the Commissioner for Federal Judicial Affairs reveal that the JACs gave 2SLGBTQI+ jurists their top rating of “highly recommended,” most often, followed closely by female jurists (i.e. as a percentage of applicants in 2023-2024 who fall into these categories).
Since Prime Minister Justin Trudeau’s government began appointments to the federal benches in June 2016, it has appointed more than 830 judges, including 203 named since Arif Virani became justice minister in July 2023.
“These exceptional jurists represent the diversity that strengthens Canada,” the Liberal government states, boasting that more than half of its court appointees are women and that, after almost nine years in office, the federal benches now reflect “an increased representation of racialized persons, Indigenous, 2SLGBTQI+, and those who self-identify as having a disability.”
Under the Trudeau government’s appointment process, which in 2016 replaced the judicial appointment advisory committee process put in place by the predecessor Harper Conservative government, federal judicial appointees come from a pool of applicants assessed as having the requisite professional competence and experience, including “awareness of racial and gender issues” and “bilingual ability,” by the 17 non-partisan seven-member JACs across Canada that are appointed by the federal government. Every JAC is chaired by a judge delegated by the chief justice of the particular jurisdiction, and comprises also one individual nominated by each local law society, Canadian Bar Association branch, and provincial/territorial attorney general/minister of justice, as well as three federal government appointees named as representatives of the “general public.”
In addition to assessing an applicant’s “professional competence and experience,” the JACs look at their “personal characteristics,” evaluating them according to a list of 20 factors, including “demonstration of a commitment to public service,” patience, courtesy, integrity, tact, common sense, fairness and humility, as well as “sensitivity to and understanding of gender, racial equity and Aboriginal justice issues.”
Federal Justice Minister Arif Virani
Notably women made up 57 per cent of the Liberals’ judicial appointments to the bench (not including elevations) last year — i.e., of the 88 jurists appointed in 2023-2024, 50 are female and 38 (43 per cent) are male (no candidates self-identified as “other”).
Moreover, there were 36 additional federal appointments of judges of other courts (such as provincial courts) and elevations from federal trial courts to appellate courts last year, and female jurists also garnered 57 per cent of those spots on the bench (20 went to women and 16 to men).
As well, more women than men applied for the federal benches last year — 210 female vs 169 male jurists.
And of the 540 applicants who were evaluated by the JACs in 2023-2024, female jurists overall were rated “highly recommended” or “recommended” (the latter is the minimum rating to be eligible for appointment) more often than male jurists — i.e., 40 per cent of the female applicants vs 34 per cent of the male applicants.
Drilling down, 19 per cent of the female applicants earned the “highly recommended” top rating — (52 of 280 female applicants) versus 17 per cent of the male applicants (43 of 260 male applicants).
Comparatively, 22 per cent of female applicants (61 of 280) were rated “recommended” versus 17 per cent of male applicants (45 of 260).
The 2023-2024 statistics compiled by the Office of the Commissioner for Federal Judicial Affairs also indicate that, in proportion to the number of applicants in their demographic category, 2SLGBTQ+ jurists most often were “highly recommended” by the JACs’ — i.e., 20 per cent of applicants (seven out of 35 2SLGBTQI+ individuals).
By comparison, 15 per cent of assessed applicants who self-identified as members of an “ethnic/cultural group or other” were rated “highly recommended” by the JACs (18 of 118 such applicants); 10 per cent of assessed applicants who identified as “racialized” were rated highly recommended (9 of 88 such applicants); 9 per cent of assessed applicants with a disability were highly recommended (1 of 11 such applicants); and one of 18 Indigenous applicants was rated highly recommended (about five per cent of such applicants).
As ever, the JACs (which screen-out the jurists they deem unqualified) rated most applicants — 63 per cent last year — as “unable to recommend” — meaning those jurists are ineligible for appointment during the three-year validity of the assessment since the Trudeau government says it appoints only from the pool of JAC-approved candidates.
Of the 88 jurists appointed to the federal benches last year, two have a disability (a little over two per cent of appointees), four are Indigenous (five per cent), four are 2SLGBTQI+ (five per cent), 11 are racialized (13 per cent) and 12 identify as being a member of an ethnic/cultural group “or other” (14 per cent) (percentages are rounded).
Nineteen of those appointed (22 per cent) were assessed to be fully bilingual in English and French (i.e. could read, write, speak and conduct hearings in both official languages).
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