It's Official: Canuck Judges Smack the Gavel Harder on Men

The following is a chopped-down version of a very interesting e-mail which arrived today.You will note a web link embedded there - one that I'm sure you'll want to visit:
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Gender Discrimination in Family Law in Canada

Very important information.

So there is no excuse for mainstream media claiming that they did not know about this as a reason for not publishing this very important information there is copy published at http://lbduk.org/Latest%20news.htm together with record of all the media that this information has been e-mailed to. If you do not see it published, question the media why:

Sent: 31 July 2007 10:26
To: [A long list of e-mail recipients follows, one of whom is your humble blogmeister himself. Well, at least I'm not among the "media" -mainstream or otherwise - who might be silent about this... nosireee!]
Subject: Fwd: Activist Alert and Press Release-LAW ANALYTICS-Statistics Battle Gender Discrimination in Family Law in Canada

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Next, the nearly complete version of a slightly earlier e-mail, sent to me by an MRA in England who had gotten it from an MRA in Canada. As you will see, the news is "Canadian" - however, the importance is global.

The first quoted e-mail (above) was mailed out by yet another activist who had posted the content of the below e-mail on a website, in combination with the first e-mail. I recommend visiting the online version (see link above) because it contains graphic versions of statistical tables that you might find helpful. (I don't feel like embedding those graphics here, sorry!) When you go to the website, look for the title which says "Gender Discrimination in Family Law in Canada". Right now it's at the top of the page, but before long you might have to scroll a bit to find it.
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LAW ANALYTICS: LET'S HEAR IT FOR BROTHER ROSCOE!
Statistics Battle Gender Discrimination in Family Law

Last week, while the press was deservedly trumpeting the empirical legal analysis[i] of Professors Strimbopoulos and Yahya on political and gender bias in the Ontario Court of Appeal, Brother Peter Roscoe quietly released his own groundbreaking work conclusively demonstrating gender discrimination in that court.

Utilizing the methodology pioneered by Brian Jenkins of F.A.C.T.[ii] originally applied to assess the qualifications [iii] of Justices Abella and Charron for elevation to the Supreme Court, Peter scored and categorized some 350 cases from the ON CoA involving 800 decisions from the mid 1990's onwards utilizing CANLII and Quicklaw electronic databases. This was followed by a data analysis phase examining case outcomes by gender for an individual CoA judge, or by a particular issue within family law.

This empirical analysis of legal outcomes is a promising new field in a staid profession traditionally accustomed to subjective and narrative assessments- so new that it doesn't have a formal name yet. By applying traditional statistical quality control techniques to the practice of law, it promises to shine a bright light where no light has shone before.

Our prescient Jeremy Swanson highlighted Peter Roscoe's work several months ago alerting us all to the promise of "Law Analytics". With data gathering and compilation now complete, Peter is openly sharing the fruits of his research with the community.

The analysis by individual judge categorizes panel rulings by appellant gender. The Discrimination Index measures the prevalence of percentage female wins over male wins so that a score above 50 indicates predisposition towards female appellants, while a score under 50 towards male appellants.

What immediately jumps out of the data is that not a single judge is predisposed towards males, with Justices Catzman, Labrose and Laskin being the least indisposed. Brian Jenkin's earlier analysis criticized appointments of Justices Abella and Charron to the Supreme Court based on gender discrimination. Here we see that Justice Abella was clearly the worst possible candidate by a significant margin! And look who follows closely on her heels.

Indeed, the average score is quite disconcerting to anyone's hopes for an impartial hearing at the Ontario Court of Appeal. A male is two and a half times less likely to win on appeal than a female- a win margin of 39% over the hapless male.

Of course, this raises the question of whether the issue lies with the law or with the judges. The answer, like beauty, lies with the beholder. Most people would agree that the law is written as gender neutral; by a process of elimination that puts the spotlight on the judges.

The next slice-and-dice of the data is by issue within family law. For this analysis each case has been scored for multiple isssue constituting the case.

Excluding the "other" category relating to technical/procedural matters, the majority of issues before the ON Court of Appeal in family law focus on Child and Spousal Support. Putting aside the "other" category, a male appellant is once again likely to be unsuccessful two and a half times as often the female- and virtually totally unsuccessful on custody issues.

Is there a ray of hope shining through in the "Other" category- the only one favouring male appellants. The optimists would say "yes"; the pessimists would point out that this merely reflects an old judicial strategem to throw the male a few bones for sake of appearance.

Perhaps most striking overall is the apparent lack of gender balance anywhere on substantive issues – a troubling point for both genders in a democracy. Although these are early days with admittedly insufficient cross-validation, the data nonetheless invites the conclusion that we are dealing with one sick puppy in the OntarioCourt of Appeal- a dog that is seemingly not interested in changing its diet to regain full health. Examining the Discrimination Index smoothed via three-year moving average indicates that the ON Court of Appeal attempted to rectify its gender leanings at the turn of the millennium, but has since been reverting to its earlier gender excesses.

The data raises a more fundamental question of how far up has the cancer of discrimination spread. If an impartial judiciary is indeed the bedrock of democracy, are we therefore to conclude that we are living in a sandcastle? Peter's analysis of Supreme Court rulings over a ten years span does not provide much comfort in this regard. Family Law cases comprise only 2.1% of cases heard by the Supreme Court over the last decade. The success ratio is 2:1 in favour of female appellants with the Discrimination Index at 35%. Child and spousal support issues dominated the topics coming before the Supreme Court with the success ratio being 2.8:1 in this regard - an even more disappointing score than the 2.4 for the ON Court of Appeal.

How solid are these conclusions? Peter would be the first to state that the preliminary data analysis stage must be followed by formal statistical significance testing, and that is indeed the next step. Nonetheless, while statistical analysis will refine the data on individual judges and issues, the fundamental conclusions will remain.

Those who know Peter won't be surprised to learn he plans on expanding into different topics in family law in order to cross-validate initial findings. At the same time, other brothers are starting a pilot project at the Superior Court level with a view to productizing the Jenkins/Roscoe methodology for dissemination to other jurisdictions.

The tool of Law Analytics portends to be a major asset for all those struggling against institutionalized injustice. What placards and sit-ins were to protest movement of the 1960's, Law Analytics may well be the comparable tool for the first decade of the new millennium.

Let's also be realistic about the consequences for this new breed of "statistical whistleblowers" in academia and within the movement. Recalling the whistleblower's informal credo "No good deed shall go unpunished", it doesn't take too much imagination to visualize the potential sources and magnitude of the pushback on disclosures of this nature. So let's salute the moral courage of Peter and those in the new field of Law Analytics.


George Piskor

Niagara Falls,ON

[i] Stribopoulos J. and Yahya M. Does a Judge's Party of Appointment or Gender Matter to Case Outcomes? An Empirical Study of the Court of Appeal for Ontario (Canada), http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=797599

[ii] Fathers Are Capable Too. Toronto, ON. http://www.fact.on.ca/

[iii] Jenkins B. Review of the Attorney General's Recent Supreme Court Appointees. www.fact.on.ca/releases/sccappts.pdf