I have written some posts in the past relating to current events that arguably demonstrate a gender bias in Canada’s Superior Courts. If there were any doubt still, last week I got the hard evidence.
I received these data from a reliable source who shall remain anonymous for now. These data represent a brand new ten year study called “Judicial Bias at the Court of Appeal III”. The study is being presented via a motion this week at the Court of Appeal. The motion requests that the court declare itself a “non-independent and impartial body“.
Do I have an obligation to share this evidence even if names of certain esteemed jurists are mentioned? Some say “yes“, while others warn about this exercise being too specific. I conclude that since all information is in the public domain, there is nothing wrong with presenting it to the public a more organised version of this same information. Plus, let's start off the year and the 60th post at Views from the Water's Edge with the universal themes of "fairness" and "accountability". For those behind creating the methodology, preparing the data and organising this research, thank you for your efforts.
The methodology seems logical and the results are no less than SHOCKING. These data show some level of discrimination on the part of ALL TWENTY TWO judges tracked between 1996 and 2006. Perhaps more shocking is that there is “heavy/high” discrimination by more than 75% of these judges. Not one judge favoured men over women over time, the closest being Justice Laskin who ruled in favour of women 8.6% more often than for men.
Now, before I say anything more, I would like to remind all readers of the pertinent sections of our dearest Charter of Rights and Freedoms:
Equality Rights Equality before and under law and equal protection and benefit of law 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
The methodology of the study is described below:
This study analyzes the decisions of 22 judges at the Ontario Court of Appeal. It is an extension of the 2 previous studies, Judicial Bias at the Court of Appeal I and II. This study traces differences in decisions based on the sex of the appellant, as can be determined by judge, issue, and year. Over 800 decisions on the public records of judges of the court are included. All the available family law entries from the Canlii database for Ontario Court of Appeal were used. Specific cases are listed by judge in Appendix A, and by year in Appendix B, from 1996 to 2006.
Part one of the study is called “Discrimination by Judge”.
“Discrimination indexes are used to compare the differences between judges. Discrimination indexes are defined as ; D = % female wins - % male wins. A negative value would indicate discrimination against females, and a positive value, discrimination against males. Specific values for 17 of the justices were computed in the earlier studies Judicial Bias at the Court of Appeal I and II and the data is included in Appendixes 1 to 17. The values for the remaining 5 judges were derived from Appendixes 18 to 22 using the same techniques. Procedural issues, penalties, equalization, costs, and issues generally designated as other are not included in this analysis. Discrimination categories have been assigned as : 0 to 15 % is slightly discriminatory, 15 to 30 % is moderately discriminatory, 30 to 60 % is highly discriminatory, 60 to 85 % is heavily discriminatory, and 85 to 100 % is fully discriminatory.”
The key results are as follows:
D = % Female Wins - % Male Wins, Discrimination count, Category
For Abella JA D = 76.5 - 6.4 = 70.1 % (heavy)
For Feldman JA D = 72.7 - 13.3 = 59.4 % (heavy/high)
For Charron JA D = 70.0 - 7.4 = 62.6 % (heavy)
For Simmons JA D = 80.0 - 23.8 = 56.2 % (high)
For Lang JA D = 50.0 - 0 = 50.0 % (high)
For Wheiler JA D = 77.8 - 26.1 = 51.7 % (high)
For McMurtry CJO D = 69.9 - 40.0 = 29.1 % (moderate/high)
For O’Connor DCJO D= 80.0 - 30.0 = 50.0 % (high)
For Goudge JA D = 77.8 - 39.1 = 38.7% (high)
For Borins JA D = 70.0 - 27.3 = 42.7 % (high)
For Rosenburg JA D = 71.4 - 33.3 = 38.1 % (high)
For Armstrong JA D = 66.7 - 26.3 = 40.4 % (high)
For Moldaver JA D = 52.6 - 6.7 = 45.9 % (high)
For Macpherson JA D = 62.5 - 14.3 = 48.2 % (high)
For Gillese JA D = 85.7 - 50.0 = 35.7 % (high)
For Juriasz JA D = 60.0 - 0.0 = 60.0 % (high/heavy)
For Blair JA D = 50.0 - 9.1 = 41.9 % (high)
For Cronk JA D = 66.7 - 42.1 = 24.6 % (moderate)
For Sharpe JA D = 33.3 - 11.7 = 21.3 % (moderate)
For Catzman JA D = 63.6 - 43.7 = 19.9 % (moderate)
For Labrosse JA D = 61.5 - 45.0 = 16.5 % (moderate)
For Laskin JA D = 55.5 - 47.0 = 8.5 % (slight)
There you have it. And, these data were made available to you first. Oh yeah, did anyone else notice that one of the worst offenders of gender discrimination in this study is Rosalie Abella at 70.1%? Justice Abella is no longer a judge at the Ontario Court of Appeal because former Prime Minister Paul Martin appointed her to the Supreme Court of Canada in 2004.
For those who don’t know, Wikepedia explains the following about Justice Abella: “Abella was born in a displaced persons camp in Germany, and moved to Canada with her family in 1950. She graduated from the University of Toronto Law School in 1970, and practised civil and family law litigation until 1976, when she was appointed to the Ontario Family Court, becoming the youngest and first pregnant judge in Canadian history. She was then appointed to the Ontario Court of Appeal in 1992.”
What are my personal recollections of Justice Rosalie Abella’s contributions as a jurist?… I recall her having turned family law "upside down" by recognising the need to have “independent legal advice” for a separation agreement to be binding. Arguably, this was the catalyst for a huge “make work project” for the legal industry in family law. More recently, her fingerprints were all over a couple troublesome 2006 Supreme Court decisions, one of which was retroactive child support.
There is much that can be written about Justice Abella, which will have to wait until another time. However, in the meantime I can’t help but wonder whether persons will need to account for failing grades when it comes to gender bias in our judiciary?
17 comments:
Excellent!
Evidence is evidence!
Do we see the walls crumbling slowly?
I am sure our children will benefit from this hard work!
We need to bring in the death penalty for judicial corruption because of the number of lives it destroys.
Keep up the good work... all of you.
We need a better future for our kids!
Anon 4:19. Thanks, though if you read my other posts, I am not so much for the death penalty. Should there be accountability? Yes.
Hi EV,
Intriguing post – judicial gender bias. But I’m not quite sure what to make of it.
First, the methodology seems shaky. As your post indicates, the methodology is based on the gender of the appellant. Such a methodology does not seem, at least at first blush, to take the state of the law into account. For example, how do advancements in gender equality, namely in family law, factor into the equation? It would seem that such advancements would favor female appellants in an effort to achieve greater equality.
Second, I’m not sure what to conclude from this bias. Is it evidence of a problem in judicial selection? Is this a judicial cultural problem? Or something else?
Perhaps you might elaborate.
OK - I am totally confused. What, exactly is being compared? Is this research limited to family law? Is it limited to custody battles? Does it involve all law suits?
Do we really want judges making decisions based on gender? Are you suggesting that men should win custody at least 50% of the time or else it is just not fair?
I think we need to know more about WHY decisions were made, and what kind of cases were being compared in order for this have any weight.
Gayle
Canadian Tar Heal. The study is 49 pages and I have only posted the results and the methodology in brief. I am sure the full version will be available before too long.
People can make of the results what they want. But, the measure is pretty simple: remove all variables but gender from judicial decisions and this is what you get when you aggregate.
For those seeking answers to a logical hypothesis - whether patriarchal principles dominate our family policy - this study demonstrates which conclusions are most appropriate.
EWV:
I am not sure that I agree that your results demonstrate bias, lack of independence or discrimination. An answer to one question would help me out -- how do you define "female win" and "male win"?
Devin. The issue rated were as follows and according to the percentage brakdown between these issues between 1996 and 2006: custody (8.4%), access (7.5%), mobility (4.8%), spousal support (30.3%), child support (23%) and other (25.7%).
The appellant's gender was tagged as either male or female. The adjudicated decision at the Court of Appeal either agrees with the appeal or not. Depending on the gender of appellant, this is considered a (W) win or a (L) loss.
This study works because cases under appeal are black and white i.e either a win or a loss.
Whether this is a lack of independence, a bias, or a system that is set up to favour one gender over another, I assure you, there are problems.
If you want to verify how it is that the system is structured in a way that violates the Charter (a more qualitative approach), I have written multiple posts explaining where are the structural flaws. These data only confirm that either the structural flaws are having either the antipipated effect or that those administering the decisions are doing so in a way that reinforces these flawed structures.
Please let me know any other details requiring clarification.
Hi EV,
...the measure is pretty simple: remove all variables but gender from judicial decisions and this is what you get when you aggregate.
This is exactly what I was referring to in my last comment. Does a win/loss rate based on the mere gender of the appellant necessarily demonstrate a gender bias? Shouldn't other "variables" be taken into account? For example, shouldn't the previous disadvantaged positions between the sexes be considered?
This is not to unduly jab at the study itself. The collection of such raw data is truly needed and important. However, when making heads or tails of it, politilogues will need to consider other factors too.
I appreciate the length of the report (49 pp). But I was curious as to your opinions of what to make of it.
I am sorry but I have to say I think this study is flawed.
I know it refers only to court of appeal decisions, but that does not mean you take the appeal out of its context.
In many, if not most cases, one party will ask for A, the other party will ask for B, and the court will come up with a compromise; C. Now, if a party is unhappy with the compromise he or she may wish to appeal it, but that appeal cannot be looked at in isolation.
The way I see it, very rarely does one party "win" - the result is usually always a compromise between two positions.
Therefore, in order for the study to be valid it would have to consider the lower court decision. Not only that, the the appellante court may also come up with a solution that is a compromise between the two positions.
Further, we would have to know if one gender appealed more often than the other, for example. If 90% of the appeals were initiated by men, and they lost 75% of the appeals, this does not mean the system is biased against them. (I am sure that the 90% mark is too high, but I hope you get my point).
Gayle
EV:
If that is your definition of a "win", then I agree with Gayle, the study is flawed. The majority of the time an appeal will uphold the decision of the trial judge. An appeal court can only overturn an error of law -- not a factual error.
Insofar as the trial decisions are concerned, they will inherently favour the wife/mother. With respect to custody and child support, the law has long recognized the presumption that the best interests of the child are served by granting primary custody to the mother. Therefore, it only seems natural that a majority of decisions (at trial and, consequently, on appeal) would favour the wife/mother. Besides, child support amounts are stipulated by guidelines.
The courts have also recognized the legitimacy of spousal support. The law has evolved from the days where women were left out in the cold after separation. This is especially important in cases of women who work as homemakers or who have sacrificed careers to raise children. This is a good thing in my opinion. The results of this study, I think, are an indication that many men still oppose the concept of spousal support and have unreasonable expectations about how much they are required to pay under the law. As a result, they lose their claims more often than they win.
The mere fact that women win appeals at a higher rate than men does not demonstrate bias in any way.
Finally, you should know that Rosalie Abella is one of the finest jurists in Canada. She is widely recognized as being a brilliant legal mind and extremely fair. It almost seems absurd to suggest that she is biased in her decision making. I have met her personally on a couple of occasions as well and can attest that she is a very nice person as well.
Gayle.
Your comments about what % of cases are brought by men versus women is splitting hairs, in my opnion. Should one assume that man or woman who makes an appeal is more justified or more wealthy?
I will check the breakdown of what % of appeals were men. However for now, assuming more men make appeals, would this not be more a reflection of a potential bias at the level of "lower courts" (that it is also being upheld in the higher courts)? If you check my post of December 23 - Judical Review 1, you will see why women tend to have better access to the family courts financially than men, which should overcome the myth argument that men litigate more (or appeal more) because they have more financial means.
If I were to say that more appeals were made by women in this study, would you say these women have more merit because they have less means to pay legals than men (and they bring it on anyhow)?
My point is this "objection" of your does not really matter when one measures bias.
Perhaps you should wait until you can actually read the report before automatically assuming it is flawed. People who come out of the gates crying "flawed" without full information do more to expose their discomfort with another possible "truth" (than their current perspective) than anything "devious" on the part of persons preparing statisitcal reseach according to well respected academic principles.
I have much more to say but I see that I will have to write another post to cover it.
Devin:
I have lots to say in response to your comment as well.
Nobody disagrees with the fact that there was a point in time when parents, typically bread-winning men, would leave their families in the lurch following a divorce. That is why laws were created to protect against persons who do not honour their family responsibilities. The State also does not want to be responsible for children of divorce.
However, many people argue that the pendulum has now swung too far the other way. Some blame persons like your friend Rosalie Abella, who is possibly the most controvercial judical appointment in my lifetime, even if she is nice according to you, and even if I am still a devoted Liberal.
What you are referring to is "the tender years docrtine". These principles, appropriately or inappropriately continue and make it so that with all other things being equal, gender is the single most important factor in the determining of child custody.
Why? The Charter has rendered inappropriate the expired patriarchal principles of the "tender year’s doctrine", which protected the "special relationship between mothers and their children". The appropriateness of "tender year’s doctrine" wore off with the entry of women at equal levels into the workforce, the frequency with which men care for their children while their wives work, the discovery that special relationships also exist between children and their fathers. Psychological research backs this up.
I object to your comment that the best interest of the child is to be with the mother. Psychological evidence disproves this too. Children are best served by having meaningful access and relationships with both parents.
Then, why do 40% of divorced men experience "contact difficulties" with their children? This is because there is no non-litigious way to enforce "access". There is also no link between access and child support. In the meantime, agencies funded by the public enforce child support and will punish those who don't pay.
The spin that the best interest of the child is congruent with the mother's preferences is the "Kool Aid" the lobbyists have been feeding to the policy makers.
This is notwithstanding the fact that following a divorce some mothers will make decisions about facilitating access (or not) out of anger (and their own self-interested preferences) and not because of "their children's best interest". Strangely, there is still no insitutional remedy for situations of access interference that is still 100% at the discretion of the mother (who usually gets custody).
These situations are very common. Why? Lobbys have blocked changes to the Divorce Act that would help hold those who make self-interested choices accountable.
This is why advocacy funding done incorrectly makes for bad public policy. The "dead beat dad" concept has been used strategically to make child support a priority on the public agenda, even though 90+% of fathers who are "allowed" to see their children by their ex pay their child support voluntarily.
Your comment proves there is a well respected gender bias in the system, which is made worse because that same bias preserves the flow of monies from men to women in the forms of spousal and child support. And, 90% of child support flows from men to women and the gender bias in the awarding of custody makes that a continued reality. Gender should not determine who pays whom in a just society.
Devin, if you look at the theme of my blog over time, all I argue for is fairness of process and merit. On this issue it is no different.
EV:
I am not commenting about all of that -- I don't know about all of that. All I am saying is that your data does not show a juicial bias. It may very well show that the law has gone too far in favouring wives/mothers over husbands/fathers, but it does not show that judges have acted in a manner that ought to bring their independence into question.
Devin:
Whether this study shows a deliberate judicial bias as concluded by Anon 4:19 or the benefit of the doubt presented by you in your previous comment about the "law going too far", what is clear is that there is there is a need for some reform in family law.
Of these two possibilities, "the Real Women of Canada" think a judicial bias is a viable possibility. They claim to be an NGO representing Canada's alternative women's movement, and below they use Rosalie Abella's words prior to her judicial appointment to prove Abella thinks judges are biased: so, is it the system or is it the judge?
RWC write on their website from earlier this millenium:
<< "However, the loudest songbird of all in support of judicial activism is Judge Rosalie Abella, now sitting comfortably on the Ontario Court of Appeal. In a well-reported speech in April at Osgoode Hall, Toronto, Judge Abella sang from a completely different songbook than she had previously used at the feminist legal conference back in 1986. At that time, when her sister feminists were gearing up for their take-over of the justice system, Abella claimed that judges held inherent biases. Now, she is loudly proclaiming that judges are absolutely wonderful - the noblest of the noble - and all are generously serving the public's interest only. She stated in her April, 2000 speech:
"The judiciary has a different relationship with the public. It is accountable less to the public's opinions and more to the public interest. It discharges that accountability by being principled, independent, and impartial … Judges … serve only justice."
Judge Abella's turn-about is not surprising. Throughout her professional life, she has used her multiple government appointments on and off the Bench to pursue her own personal agenda of radical feminism...>>
Like I said, this issue needs to be considered with full information and studies need not be deemed to be flawed siply because they challenge our understanding of fairness. There are many opinions about the family law system and also many opinions about Rosalie Abella.
If we are proponents of fairness rather than proponents of blind advocacy, it would be easier to assess whether it is the system or the judges who are biased or not.
EV
Edgewater Views said...
Decoin: those are pretty harsh words. The only other comment made by you on my blog was at least intelligent.
"decoin said...
Coyne said Dryden's speech was smug and at a pitch only Liberals can hear.
2:05 AM"
If what you are saying is that you could not find this motion on the court lists, I assure you you have missed it or you are not looking properly. The evidence is a part of another case. It is not tagged with what I have primarily emphasised, for obvious reasons.
I am not here to fabricate anything or to mislead anyone. My track record, especially since I broke the story via primary research (which people were also skeptical) about Rae earning 14 delegates via 2 votes in rural Quebec back in October should be considered quite sound.
If you are a journalist or simply an interested observer who is disappointed your research into this has failed so far, all you would have to do is e-mail me. I trust you can understand that there is only so much I can comfortably put on line.
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