Hidden Biases v An Open Mind

Andrew GreenUniversity of Toronto Faculty of Law

Nov 5, 2015

R. v. Fearon (SCC 2014)

• Two men, one with distinctive handgun, rob a jeweler

• Kevin Fearon arrested – Officer found cellphone on him – looked through texts

R. v. Fearon (SCC 2014)

• Two men, one with distinctive handgun, rob a jeweler

• Kevin Fearon arrested – Officer found cellphone on him – looked through texts

• No warrant – Fearon claimed search of his phone was illegal

“We did it”

R. v. Fearon (SCC 2014)Search was legal Search was illegal

R. v. Fearon (SCC 2014)Search was legal Search was illegalAppointed by: Appointed by:

Progressive Conservatives

Conservatives

Conservatives

Conservatives

Liberals

Liberals

Conservatives

Two Views of How Judges Make Decisions

Legal: “Judges are like umpires. Umpires don’t make the rules; they apply them … It’s my job to call balls and strikes and not to pitch or bat”

Chief Justice John Roberts, US Supreme Court

Political: “More and more people think that what’s important to us is political and that this is nine junior varsity politicians.”

Justice Stephen Breyer, US Supreme Court

United States Supreme Court2010-2012

Democratic Appointee Republican Appointee0

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Liberal Voting Rate

Liberal Voting Rate

United States Supreme Court

Union Civil Rights Criminal Procedure

Tax0

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Democratic AppointeeRepublican Appointee

What about the Supreme Court of Canada?

Liberal Appointee Conservative Appointee0

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Liberal Voting Rate

Liberal Voting Rate

How about Charter cases?

All Charter Criminal Equality Non-equality0

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Liberal AppointeesConservative Appointees

Design Matters

• Courts, like tribunals, have different designs that affect the influence of biases

• Most basic: How are tribunal members appointed?

• Focus on:– Who do you sit with on a panel?– How do training and norms help?

Who do you sit with on a panel?Three Judge Federal Court of Appeals Panels

RR RD DD0

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Republican AppointeeDemocratic Appointee

Who do you sit with on a panel?Probability of Plaintiff Winning

Sexual Harassment Sex Discrimination0

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All MaleAt Least One Female

Training and Norms

• The Wildlife Environment Protection Act prohibits ‘littering, disposing or depositing any form of garbage, refuse, junk or other debris’ on land designated as a national wildlife preserve.

• 400 ten-gallon reusable plastic dispensers of drinking water along 50 mile stretch of wildlife preserve on US-Mexico border.

• Participants received one of these sets of facts:– The defendants are construction workers who placed the dispensers

along stretch of border where they were constructing ‘border fence’ to keep out illegal immigrants.

– The defendants are immigration aid workers who left the water to be consumed by undocumented migrant farm workers who face high risk of dehydration attempting to cross border.

The Defendants DID Litter

Immigrant Aid Construction Workers0

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PublicJudges

The Defendants DID Litter

Immigrant Aid Construction Workers0

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"Liberal" Public"Conservative" Public"Liberal" Judges"Conservative" Judges

Hidden Biases v An Open Mind

• Tribunal Design Matters– Appointments– Composition of Panels– Training and Professionalism