Bias in the Judiciary?
Politics and Gender
The Toronto Star reported today that political affiliation and gender may affect certain rulings in the Ontario Court of Appeal.
The study by Yahya and Stribopoulos found the greatest variance on cases related to Charter challenges and family law cases. The findings appear to confirm an earlier American study which suggested that judges are susceptible to group polarization.
What’s the Problem?
Aspiring for impartiality in the judiciary goes back as far as Socrates:
“Four things belong to a judge:
to hear courteously,
to answer wisely,
to consider soberly, and
to decide impartially.”
These findings are potentially problematic because the Courts of Justice Act (R.S.O. 1990, c. C.43) states:
80. Every judge or officer of a court in Ontario, including a deputy judge of the Small Claims Court, shall, before entering on the duties of office, take and sign the following oath or affirmation in either the English or French language:
I solemnly swear (affirm) that I will faithfully, impartially and to the best of my skill and knowledge execute the duties of ……………………..
So help me God.
The affirmation of impartiality could appear to be compromised if a predictive pattern of rulings could be established based on gender and political lines.
Correlation between Gender and Politics?
Further complicating matters is a recent Ipsos-Reid poll demonstrating that, at least in Ontario, political affiliation runs along gender and socio-economic lines.
Canada.com news reports:
Voters more likely to support the Liberals include women, younger Ontarians and people with a university degree. Conservative supporters tend to be men, individuals aged 55 and older, and people without a post-secondary education.
This likely has more to do with the focus of various parties. Liberals have long made inroads inroads into minority communities, and still champion Trudeau’s Canadian Multiculturalism Act ( 1985, c. 24 (4th Supp.) ). Conservatives instead tend to favour policies benefiting the economic elites and social majorities, such as tax-cuts and slashing focused social programs (1).
These trends are duplicated on similar issues in the findings of the Yahya and Stribopoulos study. An important exception to this was with Charter based appeals, where Conservatives tended to favour the appealant over Liberal judges.
However, this might be more reflective of the type of Charter argument presented, and a case can be made that the majority of discriminatory issues affecting minorities and lower SES are not actively pursued in the legal system due to the expenses involved.
Homogeneity Leads to Group Think
Having a high level of cohesiveness due to shared values is detrimental to the legal system.
Group think, as it is often termed, stifled creativity and critical analysis. Dissenting opinions are often the basis for appellate challenges and provide stare decisis (precedence) for different contexts.
Creativity has also largely been acknowledged of one of the major factors behind the economic prosperity of Western nations (and, according to some, why the West is on a downwards trend).
Even law firms are realizing that internal dissent can provide innovative solutions that provide a competitive edge.
Few Minds are as Neutral as a Plate of Sheet Glass
To be fair, the predictive value of judges decisions based on political affiliations does not necessarily represent an inherent prejudice. Law, like the political process, is subject to interpretation.
There are many ways to interpret the same statute from different perspectives and under different circumstances.
These variances more likely than simply reflect this divergence, which is actually necessary and required for thorough legal discourse (2).
Lord Hugh Pattison Macmillan (1873-1952) said,
The judicial oath of office imposes on the judge a lofty duty of impartiality.
But impartiality is not easy of attainment. For a judge does not shed the attributes of common humanity when he assumes the ermine. The ordinary human mind is a mass of prepossessions inherited and acquired, often none the less dangerous because unrecognized by their possessor.
Judge Rosalie Abella, Chair of the Ontario Law Reform Commission, stated in 1987, “every decisionmaker who walks into a court room to hear a case is armed not only with the relevant legal texts but with a set of values, experiences and assumptions that
are thoroughly embedded.”
So What is the Solution?
The obvious solution would be to create more diversity in the judiciary, which was also the findings of the report. A dampening effect of bias was observed on mixed panels.
This diversity should not be limited to gender or political affiliation, but should also include race, ethnicity, religion or faith, and sexual orientation.
The argument that groups directly protected by Charter Rights are most appropriate to understand its importance and implications is not an invalid one.
When Advocacy Compromises Impartiality
However, as Madam Justice Bertha Wilson (3), the first woman appointed to Canada’s Supreme Court of Justice noted, “Change in the law comes slowly and incrementally.”
Wilson also expressed concerns that expectations for her to advocate for womens’ issues could compromise her own impartiality:
“The judge must not approach his or her task with preconceived notions about law or policy, with personal prejudice against parties or issues, or with bias toward a particular outcome.”
Self-reflection by all judges of their personal biases is therefore a necessary component to achieving as close to impartiality as possible.
Judge Shientag has confirmed this stating,
“the judge who realizes, before listening to a case, that all men [and women] have a natural bias of mind and that thought is apt to be colored by predilection, is more likely to make a conscientious effort at impartiality and dispassionateness than one who believes that his elevation to the bench makes him at once the dehumanized instrument of infallible logical truth.”
(1) An important exception to this pattern is Conservative Provincial Opposition Leader, John Tory, who has recently made considerable efforts to make his party more inclusive to diversity.
(2) The new Alternative Party in Ontario might actually run contrary to the Charter with their anti-multiculturalism and anti-bilingualism stance; their platform has not been fully revealed to date.
(3) This post was created in part to honour the late Justice Bertha Wilson, who passed away this year on April 28, 2007.
Moin Yahya and James Stribopoulos. (2007). Does a Judge’s Party of Appointment or Gender Matter to Case Outcomes? An Empirical Study of the Court of Appeal for Ontario (Canada). Osgoode Hall Law Journal 45 (2).
Madam Justice Bertha Wilson (1992). Will Women Judges Really Make a Difference? The Fourth Annual Barbara Betcherman Memorial Lecture. Family Court Review 30 (1), 13–25.
Frederick Lee Morton. (2002). Law, Politics and the Judicial Process in Canada. University of Calgary Press. ISBN 1552380467