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Do Women Judges Make a Difference? An Analysis by Appeal Court Data

Published online by Cambridge University Press:  18 July 2014

Peter McCormick  and
Twyla Job
Peter McCormick
Affiliation:
Department of Political Science, University of Lethbridge
Twyla Job
Affiliation:
Special Case Master's Candidate, University of Lethbridge
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Abstract

Given the recent penetration of the judicial profession by women, and concomitant speculation about the possible impact of women judges upon judicial decision-making, the authors examine criminal appeals to the Alberta Court of Appeal between 1985 and 1992 to address in general statistical terms the parameters of the participation of women judges. The results suggest that there is little statistically identifiable difference in the performance of men and women judges, even on specific issues such as sexual assault offenses, and what modest differences can be found are in the opposite direction from those suggested by comparable research in the United States

Résumé

L'accession récente des femmes à la magistrature a donné lieu à des conjectures quant à I'impact possible de leur participation auprocessus décisionnel sur la décision judiciaire. Les auteurs examinent les appels portés devant la Cour d'appel de l'Alberta entre 1985 et 1992 en matière criminelle afin de dresser un portrait statistique des paramètres de la participation des magistrates à ce processus. Les résultats laissent entrevoir que statistiquement parlant, on ne peut identifier de différences substantielles entre la performance des magistrats et celle des magistrates, et ce même sur des questions spécifiques comme les infractions d'abus sexuel. De plus, les quelques subtiles différences notées pointent dans la direction opposée à celle proposée dans le cadre d'une étude comparable effectuée aux États-Unis.

Type
Exchanges/Débate
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 8 , Issue 1 , Spring/printemps 1993 , pp. 135 - 148
Copyright
Copyright © Canadian Law and Society Association 1993

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References

1. “The participation of women in the legal profession is remarkably uniform … in the western industrialized nations.” Menkel-Meadow, C., “The Comparative Sociology of Women Lawyers: The ‘Feminization’ of the Legal Profession” (1986) 24 Osgoode Hall L. J. 897 at 898.Google Scholar

2. Some research has suggested that male and female college students who are attracted to law have more in common with each other than with others of their own sex who are attracted to other fields of study. See, e.g., Astin, A., “Pre-Law Students—A National Profile” (1984) 34 J. of Legal Education 73.Google Scholar

3. O'Donovan, K., “Engendering Justice: Women's Perspectives and the Rule of Law” (1989) 39 U. T. L. J. 127 at 129.CrossRefGoogle Scholar

4. “If women demand equality to men on the basis that they are the same as men, more women in the profession should be no more significant than more blue-eyed lawyers.” Menkel-Meadow, “The Comparative Sociology of Women Lawyers,” supra, note 1 at 913.

5. Wilson, Bertha, “Will Women Judges Really Make a Difference?” (1990) 28 Osgoode Hall L. J. 507 at 520.Google Scholar

6. Lahey, K., “… Until Women Themselves Have Told All that They Have to Tell” (1985) 23 Osgoode Hall L. J. 519 at 526.Google Scholar

7. Menkel-Meadow, supra, note 1 at 914.

8. Martin, S. L., “Women as Lawmakers” (1992) 30 Alta L. Rev. 738Google Scholar, passim.

9. But unfortunately a universe subject to attrition owing to omissions from the archival material on which it was based. There were twenty cases for which the name of the trial judge was not recorded and twenty-eight for which the nature of the offence was not indicated. More seriously, the Edmonton records did not record the names for the appeal panel before June 1987, although panel composition information is available for 99.3 percent of the decisions after that date—that is, the information is the most complete for the period when the participation of women judges was greatest. Because of the interaction of these various omissions, the total number of cases under discussion varies from one table to another and from one section of the paper to another.

10. The analysis will deal with panels of varying composition, rather than with the votes of individual judges, for reasons that are indicated in the Methodological Appendix.

11. “Judges' decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do.” Gibson, J. L., “Decision Making in Appellate Courts” in Gates, J. B. & Johnson, C. A., eds., The American Courts: A Critical Assessment (Washington: CQ Press, 1991) 255 at 271.Google Scholar

12. During the seven and one-half years, the Alberta Court of Appeal handed down decisions on 2,007 conviction appeals and 4,255 sentence appeals; the panel composition was recorded for 4,831 of the 6,262 appeals; all but 25 of the omissions are from the period before June 1987, when the Edmonton data did not include the names of the appeal panel. After that date, a period that includes increased participation for women judges, panel composition information is available for more than 99 percent of cases.

13. Alberta's first sentence appeal panel with a majority of women judges was set on June 13, 1988; the first such conviction appeal panel was set on September 6, 1989. There were also two women judges on one of the increasingly rare five-judge panels as early as March 9, 1988.

14. On February 26, 1992, a panel including Chief Justice Fraser, Madame Justice Hetherington, and Madame Justice McFadyen—respectively, Canada's first woman provincial chief justice, Alberta's first woman appeal court justice, and Alberta's first woman provincial superior trial judge—handed down decisions on three conviction appeals.

15. The first all-woman provincial appeal court panel was probably the one that sat in Montreal in November 1991.

16. After the initial submission of this article, and outside the time period covered by the analysis, the elevation of Madame Justice Conrad and Madame Justice McFadyen to the Alberta Court of Appeal brought the number of women on the court to four.

17. For the derivation of these figures, see McCormick, P., “Conviction Appeals in the Alberta Court of Appeal, 1985–1992” (1993) 31 Alta L. Rev. 861Google Scholar

18. See, e.g., O'Donovan, supra, note 3 at 134.

19. Using “discretion” in the way suggested by Barak, A., Judicial Discretion (New Haven: Yale University Press, 1987) at 7Google Scholar: “discretion is the power given to a person with authority to choose between two or more alternatives, when each of the alternatives is lawful.”

20. This number seems rather low, given that about one-eighth of the trial judges in Alberta are women. This is no doubt partly caused by the recency of several of those appointments; however, it may still be the case that women judges are appealed proportionately less frequently than male judges, an intriguing possibility in itself.

21. For eleven sentence appeals and nine conviction appeals, the name of the trial judges was not recorded.

22. Martin, supra, note 8 at 746.

23. It is all the more intriguing because it confirms the general finding that “women are slightly more liberal than men on variety of issues, including those related to crime control,” suggesting “that women judges would be slightly more lenient than men judges.” See Gruhl, J., Spohn, C. & Welch, S., “Women as Policymakers: The Case of Trial Judges” (1981) 25 Am. J. of Pol. Sci. 311.CrossRefGoogle Scholar This is certainly consistent with the higher ratio of Crown appeals, but it is not accompanied by a higher rate of reversal on those appeals, even when the appeal panel is entirely male.

24. See, e.g., McArthur, K. M., “Through Her Looking Glass: PMS on Trial” (1989) 47 U. T. Fac. L. Rev. 825 ff.Google Scholar

25. The leading case to date is Lavallee v. R. See, e.g., Martinson, D., “Lavallee v. R.: The Supreme Court of Canada Addresses Gender Bias in the Courts” 24 U.B.C. Law Rev. (1990) 381.Google Scholar

26. R. v. Morgentaler, Smoling & Scott [1988] 1 S.C.R. 170.

27. See, for example, Gruhl, Spohn & Welch, supra, note 23 at 311.

28. See, e.g., Gilligan, C., In a Different Voice (Cambridge: Harvard University Press, 1982).Google Scholar The suggestion is not biological determinism, but rather the impact of social context and interpersonal experiences.

29. And 55.5 percent in the 411 panels for which the composition was not given clearly; given the time period to which the omissions imply, this group as well was overwhelmingly composed of male-only panels.

30. The rate of Crown success is higher for sexual offense appeals than for appeals on other crimes against the person, but this is true whether or not a woman is serving on the panel, and therefore cannot be attributed to gender-linked differences in judicial behavior. It is, of course, possible that interaction with women judges on a number of panels has helped to sensitize male judges to the issues surrounding sexual assault, but this is a different question, and one that is beyond the scope of this investigation.

31. See, e.g., Eberts, M., “New Facts for Old: Observations on the Judicial Process” in Devlin, R. F., ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery Publications, 1991).Google Scholar

32. The phrase is taken from the theme essays of Abel, R. and Lewis's, P. S. C. three-volume collection Lawyers in Society (Berkeley: University of California Press, 1988)Google Scholar, leaning especially on volume 1: The Common Law World.

33. Atkins, B. M. & Green, J. J., “Consensus on U.S. Courts of Appeals: Illusion or Reality?” (1976) 20 Am. J. of Pol. Sci.CrossRefGoogle ScholarCf. Songer, D. R., “Consensual and Nonconsensual Decisions in Unanimous Opinions of the United States Courts of Appeals” (1982) 26 Am. J. of Pol. Sci. 225.CrossRefGoogle Scholar