Judging Stephen Harper's choice of judges: Chris Hall

Let's state the obvious right from the start.

Stephen Harper's latest choice for the Supreme Court of Canada is a white man. And a lot of people who are commenting on the nomination of the Federal Court's Marc Nadon think that's a problem, both for the bench and for Canada.

No one is saying Nadon — who's spent 20 years as a judge — is unqualified to fill the Quebec vacancy on the country's highest court.

Their point is that, with his appointment, there will be twice as many men as women on the nine-member Supreme Court, a gender bias that has been evident with federal court appointments ever since the Conservatives took power in 2006.

Statistics quoted in the July edition of the Canadian Bar Association's magazine, National, showed that fewer than a third of federally-appointed judges by the Conservatives were women. By comparison, an article in the Globe and Mail two years ago noted that nearly 40 per cent of the judges appointed in 2005 by the then Liberal government were women.

For proponents of gender parity in the courts, the decline in female judges is obvious and is a trend that must be reversed.

"The court needs to be diverse," University of Ottawa law professor Rosemary Cairns Way said this week in an interview on CBC Radio's Ottawa Morning. "The court needs to reflect the face of Canada and the different perspectives of Canadian people."

Even the Chief Justice of the Supreme Court, Beverley McLachlin, said she's ''all in favour of gender parity'' on the top court.

''I think the court should be representative of society,'' she said in an interview with the CBC's Peter Mansbridge earlier this week, adding that more than half of law school graduates these days are women.

"I think it adds to our credibility and insights we bring to different problems.''

More women and more minorities

And it's not just women who are missing in action. Law professors and others say there is also a shortage of non-whites on the bench.

Chief Justice Beverley McLachlin told the CBC's Peter Mansbridge this week that she would like to see more gender equality on the Supreme Court of Canada. (CBC)

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Justice is better served, they argue, when those who turn to the courts believe someone from their background, with their life experiences, is presiding.

Cairns Way says the federal government needs to put renewed emphasis on appointing more women, and more members from minority groups, provided they have the qualifications to be on the bench.

But while the Harper government is more than willing to court votes among minorities and new Canadians, that same commitment doesn't appear to extend to giving them preference in judicial appointments.

Retired B.C. Supreme Court judge Donna Martinson wrote last fall that, in her province, only five women and one non-Caucasian were included among 31 judicial appointments since January 2009.

The statistics, of course, are snapshots taken at a given time.

But they do capture something else. For the Conservatives, gender and diversity, and the different life experiences they reflect, are apparently less important factors for judicial appointment than a nominee's track record.

The final choice rests with the prime minister. And to date, Harper is clearly more concerned with whether a judge has a record for being tough on crime, and of exercising judicial restraint in striking down Parliament's laws, than he is with gender or ethnic diversity.

That view isn't only limited to the judges Harper appoints. His government has also moved to put more people with police backgrounds on each province's judicial advisory committees — the groups that help screen candidates.

A more transparent system

In Nadon's case, Conservative insiders say he was the right fit, on merit and on his record.

They note his dissenting opinion to the Federal Court of Appeal ruling that Canada had to repatriate Omar Khadr from Guantanamo Bay.

He also rejected Green Party Leader Elizabeth May's demand that she be included in the televised leaders' debate in the 2011 election.

Decisions like those made Nadon a preferred choice over any female candidates from Quebec.

But it's not just this judge, or this nomination.

The choice of Marc Nadon is also a clear signal to his critics that the prime minister won't be pushed into choosing a woman, even when it comes to replacing Supreme Court Justice Louis Lebel when he retires next year. Judicial ideology will likely trump gender and diversity once again.

If that's the case, the opposition parties are in a difficult spot.

The list of potential candidates to fill Supreme Court vacancies is reviewed by five MPs, including representatives of the opposition NDP and Liberals who put forward an unranked list of their three top choices.

It's not known whether those lists differed in the Nadon nomination. But the NDP member of the committee, Francoise Boivin, made it clear she thought the government should have appointed a woman.

Liberal MP Irwin Cotler, who was on the ad-hoc committee that interviewed Nadon on Wednesday, asked how his appointment added to diversity.

"Am I the ethnic candidate that fits perfectly,'' Nadon replied. "I'll let others answer that.''

Critics of the nomination process are answering, with a resounding no. They want a more open and transparent system, a system that includes more women and visible minorities in selecting qualified candidates.

And a prime minister who will put more weight on diversity when weighing the merits of future candidates for the bench.

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