Any litigation lawyer knows that some cases will turn not so much on the facts or even the law as on the personality of the judge hearing the case.
Some judges are just bloody awful, others are great, most are somewhere in between. Some are bold, some are timid; some right, some left. Even articled students hanging around the court house quickly learn which is which.
Now a study of the Ontario Court of Appeal has further shattered the notion of judicial impartiality. From the Toronto Star:
The study found that judges differed in opinion on Charter challenges, depending on whether Liberals or Conservatives appointed them. The study also traced divergent opinions to a judge's gender in family law cases.
Both of these factors had a greater impact when the appeals panel – which is almost always composed of three judges – was homogenous: when judges were either all Conservative or all Liberal, for example, or when all were men.
For example, when a convicted defendant makes an appeal after an unsuccessful Charter challenge to render evidence inadmissible, most panels upheld the conviction. But an all-Conservative panel affirmed the conviction 65 per cent of the time and all-Liberal groups upheld it at a rate of 87 per cent.
In that case, and despite impressions that Liberals would "be softer on crime," [Osgoode Hall Law Prof and co-author James] Stribopoulos said, "You would want three Conservative judges. Which is kind of crazy."
A judge's gender became most pertinent in family law disputes. When men appeal a ruling, all-male panels were statistically slightly kinder to female litigants. Litigants who were successfully acquitted on a Charter challenge were more likely to get that acquittal affirmed by a panel with at least one female judge – at 82 per cent – than they were with an all-male panel, at 70 per cent.
The solution is simple: promote more diversity among judges, Stribopoulos said. "That's why it's important that the whole of the judiciary looks like the society it judges. And right now, it doesn't."