In my post on New Year’s Day I chose to share with the Liblogs and Progressive Blogger communities confidential data just released that in essence shows a judicial bias at the Ontario Court of Appeal. The post generated allot of hits, some exceptional enthusiasm, some comments, some skepticism, and some indifference.
I especially appreciated those wanting to know more details, such as Canadian Tar Heel, Anonymous Gayle and Devin. Gayle and Devin concluded with the information I had provided that the study was “flawed”. We had it out a little bit in the comments section of the post. In the end I disagree with what I consider to have been pre-mature conclusions. Nevertheless, we can agree to disagree, which is perfectly fair. Healthy skepticism keeps the world moving. It would be good to know if after this post we still disagree.
As for the very skeptical and borderline belligerent, “decoin”, there is a case at the Court of Appeal today that is using this report as evidence.
I may have been short-sighted in identifying as an example only Supreme Court Justice Rosalie Abella’s discrimination rating. Another former Ontario Court of Appeal Justice with almost as bad a discrimination rating was appointed by then Justice Minister, Irwin Cottler, to the Supreme Court of Canada on the same day in 2004 as Justice Abella.
If you refer back to the results that I posted on January 1, Justice Charron was not far behind Justice Abella on the gender report's discrimination rating. Justice Charron favoured women over men 62.6% of the time, which is considered “heavy discrimination also. Her results in brief are as follows:
For Charron JA D = 70.0 - 7.4 = 62.6 % (heavy)
Wikipedia has this to say about Justice Charron:
Charron (born March 2, 1951 in Sturgeon Falls, Ontario) is a Canadian jurist. She as appointed to the Supreme Court of Canada in October, 2004, and is the first native-born Franco-Ontarian Supreme Court judge. (This distinction has sometimes been ttributed to Louise Arbour, but Arbour was born and raised Québécoise.)
Charron received a Bachelor of Arts degree from Carleton University in 1972, her Bachelor of Law degree from the University of Ottawa in 1975, and was called to the Bar of Ontario in 1977. She practiced civil litigation, and then joined the Crown Attorney's office in 1980, and then became a law professor at the University of Ottawa. She was appointed to the district Court of Ontario in 1988, and to the Ontario Court of Appeal in 1995. She is eligible to sit on the bench until 2026 when she reaches age 75.
I am sensitive that interested bloggers may like more information on how to define a win, the difference between pure wins and partial wins, and the number of men versus women who made these appeals. The following is an extraction from another report called “Judicial Bias at the Court of Appeal I”, which used “quick law” to consider the cases that were before Justice Abella and Justice Charron over time.
"For Justice Abella the total cases can be summarized as follows:Please let me know if more information is required to show the legitimacy of this research at this time. Otherwise, I would like to know whether there is an interest, or just apathy in looking further as to whether our judiciary is upholding its Charter obligations with respect to gender neutrality or not.
Appellant, Number, Win All, Lose All, Win/Lose Some
Male, 28, 2, 23, 3
Female,13, 10, 2, 1
It can be concluded a man had a 82.1 % chance of losing on all issues, but a woman had a 84.6 % chance of winning on at least some issues when appearing before a panel with Justice Abella on it
For Justice Charron the total cases can be summarized as follows:
Appellant, Number, Win All, Lose All, Win/Lose Some
Male, 27, 3, 22, 2
Female, 10, 7, 2, 1
It can be concluded a man had a 81.5 % chance of losing on all issues, but a woman had a 80.0 % chance of winning on at least some issues when appearing before a panel with Justice Charron on it"
9 comments:
Hi EV,
I doubt that anyone really has an answer to the question in the title of this post: “Is there a relationship of [gender] bias and Supreme Court appointments?”.
In my research, many scholars agree that judges bring their own personal experiences to the bench, whether consciously or not. Even Justice Fish agrees on this point. So, it’s not really a question of whether there is a presence of personal preconceptions on the bench. Rather, the issue seems to be one of recognition that this occurs and of way to deal with it.
As it relates to judicial selection, political parties in power may appoint judges with particular views, characteristics or life experiences that they believe agrees with their politics. After all, political appointments are just that – political – including judicial appointments. If the political pendulum doesn’t swing for a while, then those, in power, have a chance to “stack the bench” with like-minded individuals (or at least, those they think are).
Thankfully, the Canadian judiciary has a tradition of striving for the objective adjudicator. Our members of the bench are some of the best in the world, and other countries take note of our Supreme Court. Canadian judicial culture helps to mitigate the effects of the political aspects of judicial selection.
However, that does not mean that political parties have not succeeded in stacking the bench and thereby affecting jurisprudence. Peter Russell has written a few articles documenting, with quantitative measurements, the “political” tendencies of the Mulroney appointed justices. No similar study, that I know of, has been done with respect to Liberal appointed judges under Chrétien as Min. of Justice or as PM.
In drawing a link between judicial selection and gender bias, the more cynical angle might be that the political party in power sought judges who would be more sympathetic to gender causes. Lobby groups and inter-party politics may push for such developments. I’d be surprised if anyone already has a scientific answer to this question – gender bias as a result of judicial selection.
My quibble as mentioned before regards the methodology of the study. The issue is not what constitutes a “win”, but rather, whether more “wins” for a particular sex than the other actually demonstrates gender bias. It may seem slightly counterintuitive, at first. But my point is that if the law previously favored one gender, then during the period of equalization, judges may compensate for the other gender in their decisions. Thus, while the actual quantifiable numbers might suggest a markable bias, the context may indicate the opposite – a balancing.
With that said, my point is not to apologize for any potential bias. Instead, I think it’s important to remain mindful of the context surrounding the raw data.
In the end, interesting posts. post.
Canadian Tar Heel. Your comment is appreciated. In looking at the theroy of neutrality, in Plato's world, only the philosophers had the ability to get beyond self-interest so they could effectively govern in a "democracy".
French philosopher, Michel Foucault, argues that there is no way to get beyond potential biases and that neutrality is impossible.
Modern process technologies, such as the one's that have given promise to the mediation movement, have brought technology based on the separation of "process" and "content". Like in sports where referees are responsible for administering rules (not the play), mediators are able to be helpful because their role is strictly about process (not content), which in theory keeps potential biases out. However, if the process is not fair, the desired oputput of a mediation, "an agreement", will not stick.
In adjudicated processes like in court, if the process is not fair, there will still be a decision (and possibly one that is not fair even if that defeats the purpose). And, unless the judge is on par with Plato's philosophers, there will be bias, especially if the gap between fair process and the judges discretion is too wide. To me, when I hear from lawyers "it depends on the judge" it is very clear that there are process flaws involving judges who are given the leeway to bring to their decision making their own personal biases. It is puzzling to me why this is just accepted and why fair rules (like in sports) are not put in place so that "it depends on the judge" no longer matters.
My big issue with your comment here (and on my previous post) has to do with the question about whether the judges have an obligation to make decisions that rebalance other perceived inequities. You write " "But my point is that if the law previously favored one gender, then during the period of equalization, judges may compensate for the other gender in their decisions. Thus, while the actual quantifiable numbers might suggest a markable bias, the context may indicate the opposite – a balancing"
The same question was raised about mediation and mediators 15 years ago. This was met with an unequivical "no" by the foremost experts in the field. The process must be what "levels the playing field" - not the mediator and certainly not the judge.
This is what makes fair processes break down. modern process technology and best practices would argue that the fairness and benfit of any process breaks down if those with the power take on those roles. In other words, it is impossible to do this fairly and any judges or mediators who try to do such things are only making matters worse.
Is the Canadian judiciary is truly "better than others" as you suggest? It depends whether you benefit or not from the system or not. There is a large subculture of persons in Canada who don't trust or believe their is fairness in the judice system, and in family law especially. Some believe it is strategically unfair because it is soooo profitable for some ... as there are very few things people will spend all there money on apart from fighting to see their kids. Is this why arguably second families are second class Canadian citizens, with the way it works right now. How is that fair or just? And, what does the appointment of judges to the Supreme Court who have spent their careers on the bench making decisions from a tained perspective (or with measurable tainted results) do to the integrity of the system?
So far, I am absolutely shocked by the apathy. I am thus not surprised we collectively accept much "garbage". Are we too afraid of being seen as "dissenting"? Should all Liberals agree with all Liberal decisions, past and present? Now that we have been through a leadership process, what the party is really missing is "leadership" on the ground. Of course, the first step is to speak up for what is fair and what is right.
EV,
Let me begin by saying how refreshing it is to have a rational, civil discussion, especially when there’s disagreement. It’s far too rare in the blogosphere.
Moving on to the matters in this thread, I’d like to address some of your points.
(1) I believe that you may have misunderstood my quibble regarding the methodology. I use the term “quibble”, because the concern does not relate to the actual taking of measurements, but rather the potential to draw conclusions from the raw data without context.
By the nature of the adversarial judicial system, there will be an appellant and a respondent. And since the study pits the genders against one another to determine whether there is a bias based on the gender of the appellant, parties of the same sex do not really apply. Opposite-sex family cases, for example, pit husband v. wife.
Since the 1970s, Canadian society has begun to recognize the inequalities between the sexes in family law. As legislation is passed, the Charter is enshrined and the courts begin to change the course of Canadian jurisprudence, the wife (female appellant) has increasingly “won” against the husband (male appellant). Thus, as the law moves towards equalization, the female applicant wins more frequently than the male respondent. I understand that this is fairly crude, but I hope it illustrates the factual situation that I think should be taken into account when assessing the raw data produced in the study.
(2) Canadian judicial culture and tradition views judges as “referees”. They uphold procedural fairness and the “rules”. An unbiased adjudicator is a necessary ingredient to procedural fairness and is grounds for judicial review.
However, the final decision ultimately comes down to the judge. Unlike the US, the Canadian judiciary does not employ juries, except in the more egregious criminal cases. Thus, the decision maker and decider of who “wins” and “looses” is the judge.
Contrary to what some might think, the law is more of an art, than a science. Judges apply legal rules (legal precedence and/or legislation) to the facts of the case. Since the context of each case differs, there is no black and white application of the rules.
Thus, “it depends on the judge”.
(3) Even though the final outcome depends on the judge, the decision making process does not digress into some relativistic canard where personal bias is free to show its ugly head. Judicial decisions must fit within the confines of rational debate, and more importantly, legal principle. If they stray outside these confines, they are subject to judicial review.
It’s axiomatic that bias taints the integrity of the judicial system, so it’s important to constraint it even if personal preconceptions will forever remain present. It’s a messy part of our imperfect humanity, just as the cases the judges deal with are messy.
(4) Finally, I’m not sure if the lack of response to the study demonstrates apathy. It could. But in my personal experience, I often come across folks who believe that judges are robots that do not take their life experiences to the bench with them. So, it may simply be disbelief as opposed to apathy.
In my previous link, I noted how Harper’s and Martin’s critics naively took issue with the changes to the judicial selection process claiming it to be too “American”, too political. Did the fact that it’s a political appointment somehow escape their minds?
In the end, I appreciate your three posts and find the data of this study rather intriguing.
canadian tar heel. With respect to this after-post discussion, I concur. Most of all I appreciate the extent to which whatever disagreement is placed within the context of a collaborative discussion. This did not need to be adversarial to be productive or conclusive.
The subleties of your decription ie the "art of law" is valuable and demonstrates an understanding of the adversary system and common law. What should happen is that people like you could greatly contribute to reform by making the "adversary" system more consistant with principles used to evaluate data in other disciplines, including academia, actuarial science, etc. If it were anything but law, and there are MANY lawyers in my family, there would be arrests with numbers of 80% chance of women winning and 80% chance of men losing. Imagine if we replaced the demographics with English and French /gay or straight. It just would not be accepted.
I don't agree with your division about "men" and "women" as adversarias. We can only have have two "indiduals" who are adversaries, because the Charter dictates that gender needs to be left out of it. Otherwise,how is it any different to say "mothers are better parents than men are better lawyers. It does not work anywhere else. What's the point of the Charter then. It would be also be no better than Rona Ambrose's environmental plan, without teeth.
It is worth continuing the discussion as more events unfold. My understand is that this issue will be out there quite a bit over the next while.
EV
EV:
I totally appreciate your passion on this issue, but I think you are totally off-base on this. I agree with CTH, however, that it is nice to see rational debate in the blogosphere.
I understand, Devin, that it would be hard for "you" to consider me to be on-base with this issue, epecially in public.
This is a tough issue because things were out of balance the other way for so long and public perceptions typically imagine another underdog.
And, here I am "protected" by some anonymity. Do you think really?
I must confess, from an unpolitical perspective, I stuggle to know where is the gap? To quote my lawyer friend's expression most recently used I recall by Scott Brison during the campaign much to the amusement to some on the blogosphere: "you can't suck and blow at the same time".
How is it possible to give rights to one gender in certain situations that cannot apply to any other groups?...unless family policy and law is like apartheid.
And, using the "perceived" best interest of the child excuse to award cusotdy and full control to one gender over another is just not right, especially when the psychological research backs up the need for the opposite.
The next time you can you should ask your friend Michael (Ignatieff) about this family law system of ours. I know he knows what I know.
All the best,
EV
EV:
It would not be difficult for me to support your position, publicly or otherwise, if I agreed with you. The truth is that I don't.
I have witnessed family law from the perspective of a lawyer and as someone who experienced two divorces as a child and I don't believe there is a bias in favour of women in the law or the judiciary. If I did, I would say so.
The Ottawa Police and the Crown attempted to have the following document removed for gender-political reasons, but the issue at hand was gender bias in the courts and the nazi-esque attack on free expressions of dissenting opinions:
http://web.ncf.ca/ez771/No264/Narcissism_Harassment_Law.pdf
The judge allowed the expression of dissent, but dismissed the constitutional application that challenged the open giscrimination and adverse effect of section 264 of the Criminal Code of Canada against men. One of the primary issues in the proceeding challenges the gender-neutrality of the (Ottawa) Ontario Courts. The Crown response is that it is O.K. to write laws that are designed to discriminate against men, because men are more likely to break laws than women. You could probably calculate the value of PI to 5 decimal places, based on the Crown's circular, recursive logic. The Federal Crown referred to his presence in the provincial lower court as a matter of "luck". However the truth is that "fire power" is required for each charter challenge because applicants to charter challenges only have to win once, and the Government has to win 100% of the time. Statistically speaking, even if we lose 80% of our cases, we just have to keep trying. When, not "if", we win, we WILL win big time! Keep trying!
The next time you can you should ask your friend Michael (Ignatieff) about this family law system of ours. I know he knows what I know.
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