Diversity and the Supreme Court of Canada
It is a fact, universally acknowledged, that appearing before the Supreme Court of Canada is a great honour and achievement for any litigator. It is also a fact, until recently universally ignored, that by and large this honour is bestowed on men. In 2020, only 28% of counsel appearing before the country’s highest court were women.
A very interesting study was published by Arthur Peltomaa of Bennett Jones, Toronto, in August 2021 highlighting this disparity. You may download a copy of the “Gender and Racial Diversity of Counsel at the Supreme Court of Canada: An Empirical Study” here.
The study looked at the number of women and racialized persons who appeared before the SCC in the period between 2009 and 2020. While the study is useful, it is imperfect because the authors assessed the counsel’s gender (in a binary sense only) and whether or not they were white or racialized (a term used by the Ontario Law Society), based on their physical appearance only. That said, in the absence of any other systematic study on the topic the data is compelling.
Over the full twelve years of the study, women appeared before the court at an average rate of only 24.9%. On a positive note, in each of the study’s four 3-year periods, women’s appearance rates increased. The change from 21.5% in 2009-2011 to 28.3% in 2018-2020 represents a 31.7% increase. While this is a significant step in the right direction, it is discomforting and puzzling that so few women, relative to men, still appear before the SCC.
We all know women graduate and enter the legal profession at rates equal to or exceeding those of men. Women represent 42% of all litigation lawyers at Canada’s 30 largest law firms, but they made only 13% of large firm SCC appearances. The female talent is clearly out there, but is not reaching the highest court in our country at a rate that is acceptable by any stretch.
The non-private sector has fared worse in terms of female representation at the SCC, in comparison to private practice. The study showed that the non-private sector saw virtually no increase over the 12 years of the study, and actually decreased by 7% between 2015-2017 and 2018-2020.
In terms of racialized advocates, the large firms had higher appearance rates at the SCC than both federal and provincial governments. The large firms also had an appearance rate for racialized lawyers that slightly exceeded the appearance rate of racialized lawyers in private practice as a whole.
However, embedded within these figures is a large discrepancy between male and female racialized litigators within the large firms. Racialized women made just 5.6% of the appearances by large firm female litigators even though they comprised 10.1% of the female litigators employed by the large firms. The opposite situation, however, prevailed for racialized men. While they comprised just 4.6% of male litigators employed by the large firms, they made 8.7% of all large firm male appearances. This small advantage for racialized males does not appear to exist outside of the large firms.
The number of appearances is just one measure of SCC advocacy presence. Another key measure is time spent arguing. The study authors examined the length of time women argued before the court, relative to men. The data was mixed, but, overall, suggested that there were not measurable increases in speaking time for women and, across all practice sectors, the percentage of minutes argued by women lagged behind the percentage of appearances by them.
The study authors also observed that especially important and high-profile cases almost invariably involved male counsel in both private and (of course!) public sectors. A good example of this is the 2011 Securities Reference, a case involving eighteen lawyers, sixteen of whom were men. These men collectively addressed the court for 435 of the 469 minutes of oral argument. Women, in this key case, spoke for a whopping 7.2% of the total oral submission time.
While we have an SCC counsel diversity problem across all sectors, the Government of Canada deserves special mention.
The Government of Canada is the most frequent party appearing before the SCC. It also employs more litigators than any other government or private law firm in Canada. As of May 2021, the Canadian Law List named 1,178 lawyers under “Justice Canada”. The majority of these lawyers are actually women. Despite this abundance of talented female litigators, when it comes to arguing before the SCC, the Government of Canada invariably selects its white male lawyers for the job. The Government of Canada did worse than the provincial governments, and far worse than the private sector, in terms of female and racialized person representation at the SCC.
While the provincial governments did not dazzle on the diversity front either, generally they significantly outperformed the federal government. The appearance rates of women working for Ontario and Alberta were more than twice as high as those of women employed by the Government of Canada. Racialized lawyers employed by Ontario and Alberta had appearance rates that were more than ten times higher than those of their federal counterparts.
Something is indeed very rotten in the state of Canada.
The authors of the study focused on collecting critical data. We are indebted to them for this. Now we know for a fact, what we all assumed was true. By a landslide, white men continue to argue the most important cases in this country, shaping our laws and our perception of what the upper echelon of Canadian litigators looks like.
What we are going to do about it?