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MacKay still on hot seat over female judges

OTTAWA - The Justice Department announced 13 new judicial appointments last week. Twelve of them were men — and the lone woman represented a promotion to a higher court, not a new face in the pool of judges.

The appointments came as controversy dogged Justice Minister Peter MacKay over a Toronto Star report about comments he reportedly made to a group of Ontario lawyers about women failing to apply to become judges.

On Friday, NDP Leader Thomas Mulcair called on Prime Minister Stephen Harper to strip MacKay of his Justice portfolio.

"It would be really appropriate for the prime minister to come up with somebody else for the job," Mulcair said in an interview.

"Equality between men and women should be something the justice minister should be defending, and I really think Harper's got no choice but to consider removing him."

The issue goes beyond MacKay, said one legal expert.

Linda Robertson, who chairs the women lawyers forum for the Canadian Bar Association in B.C., said the prospects for female judges have diminished under the Conservatives as the pace of women's appointments has slackened.

"The frustration that we have is that under the Liberal government, they were making very healthy female appointments; it wasn't a problem under the Liberals," Robertson said from Vancouver.

"It's only been since the Conservatives came in that the number of female appointments have slowed down. They haven't stopped, but they've sure slowed down."

MacKay's department begs to differ, saying 34 per cent of sitting judges are now women, up from 29 per cent when the Tories came to power. There are currently 383 women on a bench of 1,120 federally appointed judges.

The head of the association, however, made note of the enduring lack of diversity among judges in a speech Friday to the organization's constitutional and human rights conference in Ottawa.

"Our courts at all levels have yet to reflect the gender balance and diversity of Canadian society," Fred Headon said.

"We need hard information so we can gauge where we're at and what progress we are making or not making. We need to see where the bottlenecks are so we can identify them and remove them."

Better data is critical, Robertson noted.

"We want the federal government to start simply reporting annually the number of men and women that apply across the country," she said.

"For years they have been telling us that they would promote more women, but they just aren't getting the applicants. But because it's so opaque, we don't know if that's even true."

Robertson said women make up only 37 per cent of the legal profession in Canada, meaning there is a much smaller pool of female applicants. Nonetheless, she said, judicial appointments under the Tories have been disproportionately going to men.

The lack of women in the judicial system came under a spotlight after the Star reported that MacKay rankled a group of Ontario lawyers during a private meeting when he said women weren't applying for judgeships.

The Star, quoting lawyers who were at the meeting, said MacKay attributed the dearth of women on the bench to a lack of applications, He reportedly went on to link that to a fear among women that they might be appointed to a circuit court, which entails more travel.

He is also reported as saying during the same meeting that women have a special bond with their children.

The justice ministers of Quebec and Ontario have criticized his comments as outdated and inaccurate, while MacKay has denied saying any of it. The Ontario Bar Association has not released audio or a transcript of his comments.

MacKay's wife, Nazanin Afshin-Jam MacKay, came to his defence Thursday in an open letter to the Globe and Mail, a response to a similarly framed open letter to her that was published the previous day.

"Peter was speaking to a closed session of lawyers, some of whom are now publicly attacking him, yet they refuse to release the actual tape of the speech he gave," Afshin-Jam MacKay wrote.

"He asked them for the transcript so that he can put the accusations to rest and they flatly refused to release it. Instead, they run to the anti-Conservative media with hearsay and, of course, he is savaged by his accusers, political opponents and press."

On Friday, Afshin-Jam MacKay declined a request for an interview.

MacKay was still on the hot seat as he visited Nova Scotia on Friday. He was asked to clarify his remarks on female judges, as well as the starkly different Mother's and Father's Day messages he sent to department staff earlier this year.

The message to mothers praised their ability to juggle the practical demands of work and family, while the message to fathers praised them for helping to shape the minds of a future generation of leaders.

MacKay's wife says female staff members in the Justice Department wrote the message. MacKay himself, who was in Antigonish on Friday, had little more to offer.

"Look, I think enough has been said about what I didn't say," he said.

Robertson, meantime, also urged the Ontario Bar Association to distribute the audio of MacKay's comments. MacKay's office says it didn't record the speech.

"They really need to release that audio so we can get some clarity on what was said and begin a dialogue," she said.

— With files from Mike Blanchfield @mblanchfield

Follow Lee-Anne Goodman on Twitter at @leeanne25

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