Nova Scotia's slow journey to judicial equity

Nova Scotia recently announced two landmark judicial appointments that brought the provincial bench closer to racial and gender equity than it has ever been, and some signs indicate it could be a permanent shift.

CBC News spoke to lawyers, social workersand members of the justice system to get a clear picture of where things stand today, and what remains to be done. This is part one of the three-part series: the quest for judicial equity.

The racist framing of Donald Marshall Jr. for murder a generation ago sparked calls for an overhaul of Nova Scotia's criminal justice system.

Theroyal commission into his wrongful conviction revealed Nova Scotia's justice system failed him "at virtually every turn" and found that the white police, judges and lawyers involved in his conviction treated him unfairly, largely because he wasMi'kmaq.

The Marshall inquiry concluded that bringing equity to Nova Scotia's legal system was the most important thing the province could do to prevent similar miscarriages of justice.

• From the archives: Donald Marshall Jr. exonerated

Last month Catherine Benton became the province's first Mi'kmaq woman judge. Ronda van der Hoek, an African Nova Scotian woman, was appointed the same day.

But how many people applied to be judges, and how the judges were picked from that list remains shrouded in secrecy.Nova Scotia keeps its list of potential judges quiet, and critics say that needs to change.

'Opaque and convoluted' appointment process

Naiomi Metallic, a Mi'kmaq lawyer holding the chancellor's chair in Aboriginal law and policy at Dalhousie University's Schulich School of Law, said the presence of Mi'kmaq judges is crucial at a provincial level becausethat's where most of the cases are.

"I'm delighted at the appointments. I think all our speaking publicly on the issue has paid off. That said, Nova Scotia cannot simply rest on its laurels with these appointments," she told CBC News. "The work is not done. Our judiciary is still not representative of the population it serves."

With the new appointments, Nova Scotia's provincial and family courtshas three black judges and one Mi'kmaq out of 35; women comprise 15 of the 35, or 42 per cent. When the Marshall report came out in 1989, Nova Scotia had zero Mi'kmaq judges and two black judges (Castor Williams of Antigua and Corrine Sparks of Loon Lake, N.S.).

"The problem is the process adopted at the provincial court level is fairly opaque and convoluted," Metallic said.

Promoting social justice

Qualified lawyers who apply get added to a longlist of possible judges.The Justice Department consults that list to fill vacancies as they arise and sends a shortlist to the justice minister, who selects the new judges. The governmentdoesn't publish the list of candidates. Metallic said it should.

"If we see that 10 diverse candidates have applied consistently for three years, and it continues to be Caucasian males for the most part who get appointed, then we can start scratching our head about that," she said. "If you don't count it, it's really easy for people to say it's just a matter that the pool's not big enough. How can you argue against it if you don't have the numbers?"

Whalen exploring more changes

CBC News put those questions to Justice Minister Diana Whalen. She said the list of potential judges is kept secret to respect the privacy of applicants, who may not want their colleagues and clients knowing they've applied.

Whalen met with the Nova Scotia Barristers' Society's racial equity committee and heard the same message from them. They suggested the Justice Department track numbers, not people, so everyone would know how many diverse candidates were on the longlist. "That way we would have an idea if there were quite a number of candidates applying and none of them were making it to the recommended list, that might be a signal or a red flag," Whalen said.

She is pursuing that idea.

Once lawyers got on the longlist, they'd "fall off"at some point, said Whalen, but no one knew when. She changed that so it's a standard three-year period on the list, after which you must reapply.

Reaching out to would-be judges

Whalen also made a bigger outreach effort when posting the judicial vacancies. Usually, the ads run in provincial and local newspapers. This time, the Justice Department shared the postings with the provincial barristers' society, the Canadian Bar Society, other government departments, Lawyers' Monthly, and Dalhousie University's Indigenous and black law student societies, plus the university's Indigenous Black and Mi'kmaqInitiative.

Whalen also heard complaints about a previous government's decision to change the requirements so that lawyers needed 15years of experience, rather than 10. Critics said the government was moving the goalposts away from a rising generation of diverse, would-be judges. Whalenfound no good reasons for the change and switched it back to 10.

"This is important to us," Whalen said. "Our bench is getting more diverse, but we still have a long way to go for gender, language abilities. We're trying to make the bench reflective of our society."

• Part 2: In search of a Mi'kmaq 'super chief'
• Part 3:How a 'national crisis' showed the value of black judges
• Read 2015's award-winning series, the Colour of Justice