Who’s to Judge? Gender Parity and the Bench

The NB Women’s Council is on Medium! We’re going to be using this platform to explore gender-equality stories that are in the news — and those issues that aren’t getting as much attention.

Our first post explores the value of appointing more women to the judiciary — what changes can this lead to and who continues to be excluded from the bench?

In a 2012 lecture on the role of women in the Canadian judiciary, Chief Justice Beverley McLachlin, the first woman to be appointed Chief Justice of Canada, offered the following reflection:

My personal experience has led me to the conviction that women on the bench do make a difference. I have seen deliberations take a new turn because of the perspective brought by a woman to an issue involving a woman. And I have seen court culture change as the number of women on a court moves from one, to three, to four.

Recently, the New Brunswick government seemed to heed McLachlin’s observation on the importance of gender balance within the judiciary. A few weeks ago, New Brunswick named five women as provincial judges becoming the only provincial or territorial jurisdiction to establish gender parity between men and women judges at the provincial court level. In addition, the government appointed Jolène Richard as chief judge of the provincial court. This is the first time a woman has taken on this role in our province’s history. For many, such appointments mark a milestone in an ongoing effort to increase the number of women judges among the Canadian judiciary.

New Brunswick first saw women enter the judiciary in 1935 when Muriel McQueen Fergusson was named judge of probate. It was not until 1985 — fifty years later — that another woman, Patricia L. Cummings, would follow suit with an appointment to the provincial court.

It would only be in 1998 that a woman, Margaret Larlee, would receive a federal judicial appointment to the Court of Appeal of New Brunswick, the highest court in the province. In 2017, women remain significantly under-represented among federal appointments to higher level courts. In the Court of Queen’s Bench and the Court of Appeal of New Brunswick, both of which receive federal judicial appointments, 13 out of 37 or 35 per cent of judges serving are women. Across Canada, only 37 per cent of federally-appointed judges are women, according to the most recent Statistics Canada data.

Addressing gender imbalance is widely recognized by legal scholars as integral to strengthening the impartiality and neutrality of the judiciary. Specifically, improved gender balance can challenge gender-based stereotypes and biases that can enter into judicial decision-making and are embedded in the law itself. The persistence of gender bias is particularly evident, for example, in a recent sexual assault trial in Nova Scotia in which the judge’s ruling revealed sexist and gender-stereotyped beliefs about women sexual assault victims.

While continuing education and specialized training for judges have been offered as one mode of addressing these challenges at the individual level, feminist legal scholars such as Sherrilyn Ifil argue that judicial impartiality must also be supported at the structural level by including a more diverse range of perspectives and experiences among the judiciary itself.

Gender parity is one step toward structural impartiality; however, as Canadian legal scholar Rosemary Cairns Way argues, transformational change also rests on the establishment of a judiciary that reflects an intersectional understanding of diversity, inclusion, and representativeness among its members. A 2016 analysis of the composition of the federal and provincial/territorial judiciaries across Canada, for instance, demonstrates significant deficits in the number of racialized and Indigenous individuals to receive judicial appointments.

In achieving gender parity between men and women judges at the provincial court level, New Brunswick takes an important step in the creation of a judiciary that reflects the values of diversity and inclusion. To build on this momentum, the province has the opportunity to deepen its commitment to these values by continuing to evolve a more representative judiciary — one that includes not only the voices of women but also the voices of Indigenous peoples, racialized individuals, persons with disabilities, LGBTQ+ individuals, and other equality-seeking groups. In doing so, New Brunswick may create the conditions necessary for the “new turns” and broadening of perspectives Chief Justice McLachlin noted are possible when the judiciary more accurately reflects the population it serves.

The council is New Brunswick’s independent advisory body on issues of importance to women and their substantive equality.