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Canadian Judicial Council
Conseil canadien de la magistrature
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Our
File: 07-0177 29 February 2008
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Ottawa, Ontario K1A OW8
Mr Peter Karl Roscoe 111 Kamloops
Ave Ottawa ON
K1V 7C8
Dear Mr Roscoe:
I am writing further to your
letters of 2 June 2007 and 23 October 2007, in which you make complaints
regarding the Honourable Madam Justice Rosalie Abella and the Honourable Madam
Justice Louise Charron of the Supreme Court of Canada.
Nature and
scope of the complaint
Your complaint is set out in two
letters which also attach two reports, the first entitled Gender Bias in
Family Law at the Court of Appeal 2007, the second, Systemic Discrimination
Studies I. There is both some overlap between the studies and an incidental
amount of difference between them. As well, there is occasional divergence
between the data and analysis contained in the letters and that in the
accompanying studies. To the extent there are differences, the focus of the
following comments are directed to the contents of your complaint letters.
You allege in your letters that
Justice Abella and Justice Charron wrongly discriminate against men in family
law cases. You cite the studies and their conclusions as evidence to support
this allegation. You say that, in important respects, Justices Abella and
Charron are not capable of performing impartial adjudication as required of a
judge.
Justice Abella
In support of your complaint you
provide a list of 41 cases with your 23 October letter which you indicate
represents Justice Abella's "total family cases at the Court of Appeal for
Ontario." I note that the revised analysis which you provided lists 53
such cases for Justice Abella; however, the following comments will focus on
the list that was forwarded with the letter.
Your analysis of the 41 cases
indicates that for Justice Abella in 28 matters involving a male appellant the
results were "Win All, 2, Lose All, 23," and "Win Some/Lose
Some, 3." For Female Appellants you indicate that in 13 cases the results
were "Win All, 10, Lose All, 2" and "Win Some/Lose Some, I
." You suggest percentages of success derived from your analysis and argue
that it is demonstrated that a female appellant has a much larger chance of
winning than a male and attribute the difference to bias on the part of Justice
Abella.
Justice Charron
Your analysis and conclusions
respecting Justice Charron are similar to those respecting Justice Abella and
complain of unacceptable discrimination against men in family court actions. In
the case of Justice Charron your letters and analysis indicate that 48 listed
cases were available for analysis at the Court of Appeal level, and seven in
the Supreme Court of Canada. Your analysis, however, focuses on the Ontario
Court of Appeal decisions. Your letter confirms that a feature of your concern
in respect of both judges is "...their high win loss ratio."
The studies you provided show that
you have utilized the spread between what you characterize as average
"male wins" and "female wins" to draw a conclusion of gender
discrimination. You write that "Discrimination against men is calculated
by subtracting the percentage of male wins from female wins." You have
assigned five categories from "slightly discriminatory" to
"fully discriminatory." You conclude that Justices Abella and Charron
fall into what you deem the "heavily discriminatory" category and
that Ontario Court of Appeal judges, on average, fall within a "highly
discriminatory" category.
Mandate of the Canadian Judicial Council
As you know, the mandate of the Council
in matters of judicial conduct is to determine whether a recommendation should
be made to the Minister of Justice, after a formal investigation, that a judge
be removed from office by Parliament. The Council is not a court. It has no
authority to review a judicial decision for the purpose of determining its
correctness. Nor can the Council overturn or revise decisions reached by
judges. Such powers rest only with appellate courts, including, in certain
circumstances, the Supreme Court of Canada.
In accordance with the Council's
mandate, and pursuant to the Complaints Procedures of the Council, I
referred your complaint to the Honourable Richard Scott, Chief Justice of
Manitoba and Chairperson of the Judicial Conduct Committee of the Council. Upon
completing his review, Chief Justice Scott has asked that I address your
complaint as follows.
Chief Justice Scott advises that the
Council's duty and mandate, in respect to the allegations you have presented,
is to assess whether the allegations in your letters, and the information
contained in the studies which you forwarded, provide a basis to conclude that
Justices Abella and Charron have demonstrated bias such that it would
constitute judicial misconduct. For misconduct to take place, bias would have
to affect the judge's ability to perform the duties of their office, as will be
further explained below.
Bias and judicial
conduct: applicable standard
Ethical Principles for Judges, published
by the Canadian Judicial Council, sets out a valuable frame of reference
regarding the principles to be considered by judges relating to bias or
prejudgement. While this publication is not a code of conduct, it does provide
guidance on ethical issues, which must be considered in assessing judicial
conduct. The Principles provide that:
1. Judges
should disqualify themselves in any case in which they believe they will be
unable to judge impartially.
This statement reflects a key legal
principle, specifically that a decision on whether or not to recuse from a
case, for reasons of partiality or otherwise, is a decision that rests with the
judge.
The Principles also provide
that:
A.3 Impartiality is not only concerned with perception, but more
fundamentally with the actual absence of bias and prejudgment. This dual aspect
of impartiality is captured in the often
repeated words that justice must not only be done, but manifestly be
seen to have been done. As de Grandpre, J. put it in Committee for Justice
and Liberty v. National Energy Board, the test is whether "an
informed person, viewing the matter realistically and practically
and having
thought the matter through -" would apprehend a lack of impartiality in
the decision maker.
Whether
there is a reasonable apprehension of bias is to be assessed from the
point of view of a reasonable, fair minded and informed person.
A.4 True impartiality does not require that the judge have no
sympathies or opinions; it requires that the judge nevertheless be free to
entertain and act upon different points of
view with an open mind." The judge's fundamental obligation is to
strive to be and to appear to be as impartial as is possible. This is not a
counsel of perfection. Rather it underlines the fundamental nature of the obligation of impartiality which
also extends to minimizing any reasonable apprehension of bias.
These key principles recognize that a
judge can have opinions and beliefs about the matters coming before the Court,
without this being in and of itself a basis for concluding that the judge is
biased. The judge's obligation is to keep an open mind and to remain impartial.
The case law is also of direct
relevance in identifying the applicable standard. Any review of recent leading
cases regarding judicial bias would certainly include Wewaykum Indian Band
v. Canada, [2003] 2 S.C.R. 259, and Mugesera v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 91.
In
those decisions of the Supreme Court of Canada, the Court recognized that
judges must approach all cases with an open mind. The Court also held
that there is a presumption of impartiality and that it is the responsibility
of the party alleging bias to demonstrate that bias - actual or apprehended -
exists.
The Supreme Court has made it
clear that the grounds on which bias is alleged must be serious and inquiries
into possible bias highly fact specific. Moreover, the Court has indicated that
there is a strong presumption in favour of judicial impartiality.
That being said, a situation where
actual or apprehended bias has been established is not in of itself indicative
of judicial misconduct. The remedy for actual or apprehended bias lies in the
recusal of the judge, or in the reversal, by a Court of Appeal, of the decision
reached as a result of real or apprehended bias. Without anything more, bias -
real or apprehended - does not translate into a finding of misconduct by the
judge.
While Chief Justice Scott does not
comment on the merits of the decisions reached by the Court in the cases cited
in your studies, he advises that establishing real or apprehended bias in any
of these cases would require clear, cogent, and fact-specific evidence to rebut
the strong presumption in favour of judicial impartiality. Even if bias were
established, additional clear evidence would be required to warrant a finding
of judicial misconduct. This might be in the nature of bad faith, wilfully
ignoring key evidence, wilfully concealing facts that would allow a challenge
of the judge's impartiality, or other behaviour on the part of the judge that
would seriously undermine public confidence in the judge's ability to
impartially adjudicate cases.
Allegations of bias and
discrimination
in light of the standard set out
above, your allegations against Justices Abella and Charron are now addressed.
Justice Abella
In
respect of Justice Abella, the 41 published Reasons for Decision identified in
your correspondence have been reviewed with regard to your allegations of
discrimination.
In none of these matters was there
a request or any suggestion whatsoever that Justice Abella should recuse or
disqualify herself on the ground of bias or prejudgement. None of the reasons
for decision issued in those matters disclose statements or observations that
suggest any of the parties involved raised any concerns about a perception of
bias or absence of impartiality.
Chief Justice Scott notes that, in
most of the matters identified, Justice Abella did not write individual reasons
for decision, but rather took part in writing the Court's collegial reasons or
concurred in a decision written by a colleague. In 37 of the 41 decisions
referred to, the Court unanimously decided the matter under appeal, issuing a
single decision agreed to by all three judges. In one matter Justice Abella was
one of a majority of two. Thus, in almost all of the matters considered,
Justice Abella's decision and reasons were precisely the same as those of the
other experienced, seasoned jurists sitting with her on the Court. Justice
Abella dissented in only three of the 41 matters. In those three cases she
dissented, as it happened, once in the husband's favour, once in favour of the
wife. In a third matter, she indicated that based upon her consideration of the
interests of the child concerned, she was not in agreement with the majority.
Accordingly, an
analysis of the actual decisions of the court in the matters which were decided
shows that Justice Abella very rarely differed from the analysis of the
relevant factual and legal issues and disposition of the matter by her judicial
colleagues, and that when she did do so there was no basis on which a
reasonable and informed person could conclude that the differences in position
were the result of gender bias. Incidentally, it could be noted that, during
the period in question, the Court was composed of a clear majority of male
judges.
Although the letters and studies
indicate they provide a complete or representative portrait of the total of
family law cases considered by Justice Abella, further legal research indicates
that they do not. Many cases dealing with property, procedural or
jurisdictional issues, cases which were identified as "criminal" and
certain other decisions of arguable relevance in the broad category of
"family law" are eliminated or ignored. The studies provided examine
only a specifically defined and circumscribed set of cases and not the
suggested full spectrum of family law decisions where Justice Abella was one of
the judicial panel. A fully informed observer would be hesitant about sweeping
conclusions drawn from such a limited and narrow sample.
In short, it is clear that the
"wins" and "losses" ascribed by the studies do not result
from an individual initiative on the part of Justice Abella but generally
reflect a collegial decision by the court on a reasoned basis. The suggestion
that Justice Abella is individually responsible for the outcome of these 41
cases, or that a consideration of their content would suggest that individual
bias led to their outcomes, is simply unsupportable.
Justice Charron
In respect of Justice Charron, a
consideration of the allegations made and of the conclusions offered in the
studies lead Chief Justice Scott to also conclude that there is no evidence of
bias.
An examination of the 48
identified Court of Appeal decisions relating to Justice Charron shows that the
list identified is not a comprehensive one and excludes or ignores many
decisions that would have to be relevant in any rigorous study. No specific consideration
is accorded to matters decided on the basis of the interests of children, a
substantial proportion of those listed.
Also of importance, an examination
of the 48 decisions does not disclose any deviation from the approach of other
members of the court which a reasonable and informed observer could attribute
to bias. In one matter Justice Charron acted as a single judge in a chambers
application. In all of the remaining 47 cases which are identified and
analyzed, Justice Charron either is the author of a unanimous decision of the
court or more commonly concurs without any deviation with a decision authored
by a colleague or with the decision of the court. There does not appear to be a
single matter in which Justice Charron was asked to recuse or disqualify
herself. In no case is there any specific statement or observation whatever,
from which it might be concluded that bias or an intention to discriminate may
have been present.
Certain decisions briefly
mentioned in your material, in respect of Justice Charron, were those of the
Supreme Court of Canada; again, however, there is no specific basis suggested
or offered in respect of these decisions which would give rise to a perception
of bias.
Again,
the suggestion that bias was present in the identified matters becomes
unsupportable when considering the collegial nature of the decisions.
As outlined above, even if there had
been apparent bias in any of these cases, this would not necessarily amount to
judicial misconduct. There is no indication that Justice Abella or Charron may have acted at any time in bad faith, that they
wilfully ignored key evidence, that they wilfully concealed facts, or
otherwise engaged in behaviour that would seriously undermine public confidence
in their ability to impartially hear cases.
Conclusions
reached in the studies provided
Even though the allegations against
Justices Abella and Charron, as indicated above, cannot be sustained, your
allegations also suggest there would have been systemic or unconscious bias on
the part of all judges of the Ontario Court of Appeal in family law matters.
The studies indicate the criteria
on which cases were selected in regard to Justice Abella and classify 37 of the
41 matters selected as "Male or Female," and "Win All" or
"Lose All" matters. The studies and your correspondence then suggest
that the resulting high "win/loss ratio" establishes bias and
discrimination. A similar approach was followed in respect of Justice Charron
and the other judges of the Court of Appeal.
Chief
Justice Scott is of the view that the conclusions you draw are based on a
clearly fallacious underpinning and erroneous assumptions.
Family law matters are inherently
complex. Issues of child custody, in particular, must be decided after
consideration of many factors, most significantly the best interests of the
child, as well as the ability and situation of the parents. To suggest that the
outcome of such complex matters can be categorized through a binary
"win/lose" method is simplistic and devoid of reality.
Parties do not "win" or
"lose" in cases of family disputes. The public interest and,
applicable law governs the outcome of the proceedings. Your analysis is based
on an assumption that family matters are a private dispute between two parties.
This is not the case. In many respects, the children involved - and even
society generally - may have a greater stake and interest in the outcome of
such disputes than the parents.
In reviewing such situations,
therefore, a judge must consider many factors and come to conclusions not on
the basis of individual interests of the "male" or
"female," as suggested by your studies, but often on the basis of
broad societal interests, including the interests of any children involved. A
reasonable, fair-minded and informed person would have grave doubts about the
attribution of gender bias to a judge when such decisions are governed by
consideration of the best interests of the children.
Another significant concern is
that while the study assumes that appellate cases alone are an appropriate
source of decisions for the analysis undertaken, an informed observer would
seriously question this assumption. Such an observer would know that a complete
and fair-minded assessment of appellate decisions must reflect their legal and
factual context, in particular the nature and outcome of the trial decisions
under appeal.
In well over half of the 41
matters identified, the Court of Appeal affirmed the decision taken by the
trial judge, without change. The approach of the studies is that such matters
nevertheless represent a "win" for the respondent and a
"loss" for the appellant, and that such "wins" and
"losses," removed from their legal context, may be statistically
analysed to establish bias on the part of each of the judges considering the
appeal. Chief Justice Scott is of the view that such a conclusion is completely
unsupportable. There are any number of reasons why a party may seek a review of
a decision on appeal, including a simple inability to accept a fair and
informed decision by the Court. The fact that such a party then
"loses" on appeal may be more indicative of a reluctance or inability
to accept the decision of the trial court than a serious legal challenge on the
merits.
There are other concerns that
arise as well from the careful application of the assumptions made in the
studies to the actual decisions reached. By the studies' own criteria, the
"win all" category for males is understated and that for females
overstated. The "lose all" category for males is overstated and that
for females understated. The incidence of matters in which the males and
females "win some/lose some" is significantly understated. Again the
interaction of the legal process with the outcome is not considered. Almost all
of the "lose all" matters, whether the identified "loss" is
by a
male or female
appellant, involve matters where the decision of the trial judge is upheld on
appeal. In the remaining small sample of matters it is more common that
appellants "win some/lose some" in regard to the issues taken on
appeal than that a party of either gender succeeds completely. The "win
all / lose all" analysis offered seriously misrepresents the complexity
and indeed the outcomes of many of the matters considered.
Equally important, the studies do
not take into account the precise mandate of the Court of Appeal in reviewing
trial decisions. The court is required to apply a certain standard of review in
making a determination on whether or not to reverse the findings of the lower
court. In particular, the Court of Appeal cannot substitute its own judgement
to findings of fact made by the trial judge, unless the appeal court finds
there was a palpable and overriding error in the conclusions reached by the
trial court. In other words, a court of appeal must normally defer to the
findings of fact made by the trial court, even if those findings might be
subject to a variety of interpretations. As for pure matters of law, a court of
appeal will intervene when legal errors are made; however, in family law, most
appeals do not turn strictly on a point of law.
In light of the above, Chief Justice
Scott is of the view that the conclusions drawn in your study simply do not
support in any way the allegations to the effect that there exists a form of
systemic or unconscious bias on the part of the judges of the Ontario Court of
Appeal.
Decision with
regard to the complaint
Therefore, after due consideration of
the allegations you made, and the information provided in your correspondence
and appended studies, Chief Justice Scott finds that you have not established
that any judicial misconduct has taken place, either by the individual judges
named or by judges acting collectively.
Accordingly, Chief Justice Scott
has directed me to close the file by providing you with this letter.
Yours sincerely,
Norman Sabourin
Executive Director and Senior General
Counsel