Conservative government gave ‘serious thought’ to gender parity on Supreme Court

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Canada takes new approach to choosing Supreme Court justices
WATCH ABOVE: A major changes is coming to the way judges are appointed to the Supreme Court, one that takes control away from the prime minister. As Mike Le Couteur explains, if you're a judge or a lawyer you can apply to be a justice on Canada's top court – Aug 2, 2016

OTTAWA – The previous Conservative government at one point considered working toward giving women a majority of the nine seats on the Supreme Court of Canada, said former justice minister Peter MacKay.

“I can assure you that there was very serious thought given,” MacKay said in a recent interview with The Canadian Press about the new appointments process proposed by the current Liberal government.

The former cabinet minister from Nova Scotia said this was at the time leading up to the appointment of Justice Marc Nadon, a choice that was ultimately rejected by the high court on the grounds that it did not meet the constitutional requirements for a Quebec justice.

The short list of six candidates, which was later leaked to the Globe and Mail, included the names of two female candidates.

Had one of them been chosen, the Supreme Court would have had four women on the bench, resulting in gender parity at a time when there was still another vacancy.

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“It was being considered as an important precedent, but also just the fact that at that moment in time the female candidates for selection were equally impressive as far as their qualification,” MacKay later wrote in an email in response to a follow-up question as to whether promoting more women to the high court was a deliberate goal.

Had things turned out that way, women would have made up a majority of the justices on the Supreme Court for the first time in December 2014, when Prime Minister Stephen Harper appointed Suzanne Cote, the first woman appointed to the high court from a career as a lawyer in private practice.

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MacKay shared the insight into judicial appointments history while making the argument that the Liberal government should be able to achieve its goal of diversifying the bench without abandoning the “constitutional tradition” that would see retiring justice Thomas Cromwell, who is from Nova Scotia, replaced with another judge from Atlantic Canada.

“I think we really have to keep front and centre that criteria of legal excellence,” said MacKay, who is considering a bid for the Conservative party leadership.

The Liberal government announced last month that a new, non-partisan advisory board will choose potential new judges – who must be “functionally bilingual” and reflect the diversity of the Canadian population – to sit on the high court.

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The board has been asked to include candidates from Atlantic Canada on the short list, but that does not mean one of them will get the job.

MacKay, meanwhile, is being accused of engaging in some revisionist history when it comes to the controversial choice of Nadon. The appointment culminated in an unprecedented public feud between the Harper and Chief Justice Beverley McLachlin after the Supreme Court nixed the appointment.

Harper ended up instead naming Justice Clement Gascon, from the Quebec Court of Appeal, in June 2014.

Former New Democrat MP Francoise Boivin, who was one of the five MPs on the selection panel that reviewed the short list, said she felt what the government really wanted at the time was to appoint Nadon, a Federal Court of Appeal judge from Quebec.

“I never felt (for) one second that their goal was really to have a woman,” said Boivin.

Lorne Sossin, dean of the Osgoode Hall Law School at York University, pointed out that five of the seven Supreme Court appointments Harper made – or six of the eight, if one includes the failed attempt at naming Nadon – were male.

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“The record seems to belie that characterization of their approach,” Sossin said.

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MacKay landed in hot water in 2014 when the Toronto Star reported on comments he made to a group of lawyers that some interpreted as suggesting women were not applying to be judges because they feared the travel required by circuit-court jobs would keep them away from their children.

His office at the time said that 34 per cent of the federally appointed judges were women, arguing that was a 17-per-cent increase over the previous Liberal administration.

An analysis by The Canadian Press showed that despite this increase, the Conservative government actually appointed women judges at a lower rate.

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