Part 3: Judicial Review: Is there a relationship between bias and Supreme Court appointments?

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:

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"

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.

Part 2: Judicial Review - Data from 10 year study proves a judicial bias

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?