University of Toronto Law School Faculty Blog

The Bali Challenge: How to get a global climate deal, and fast?

According to UN secretary-general, Ban Ki- Moon, the most recent findings of the Intergovernmental Panel on Climate Change (IPCC) suggest that the impacts of climate change will be “so severe and so sweeping that only urgent, global action will do.”

The challenge at the pending UN meetings in Bali will be to set the tracks for just that: a regime that includes all major greenhouse gas (ghg) emitters and imposes meaningful emission reduction targets on them.

Canada’s Environment Minister, John Baird, has called the IPCC findings “powerful” and “overwhelming.”  Assuming, then, that Canada’s goal is to promote urgent and global action, what of its negotiating strategy for Bali?

Why judicial independence matters

co-authored by Adam Dodek and Lorne Sossin

This commentary was first published on the Globe and Mail website on November 23, 2007.

Why should Canadians care about judicial independence? For one, history shows that a strong independent judiciary can be a bulwark against tyranny. Often, the first thing that an aspiring dictator does is attempt to neutralize the independence and effectiveness of the judiciary through harassment or corruption. Robert Mugabe's success to this effect in Zimbabwe is an unfortunate recent case study in the demise of judicial independence and its impact on society. Similarly, in Pakistan, where a stacked Supreme Court ruled yesterday to clear General Pervez Musharraf's path to re-election, Chief Justice Iftikhar Chaudhry and other members of the court had been confined to house arrest.

In Canada, we have been fortunate to have escaped such upheavals. However, we often look to the independence of the judiciary to resolve some of the most divisive and highest-profile issues of the day — through commissions of inquiry, invariably headed by a judge. We need only think of Gomery, Goudge, Arar, Walkerton, Air-India and now, of course, the Mulroney inquiry. In Canada, judicial independence is the collective constitutional capital that we frequently draw against to help bail us out of messy problems; we should not take it for granted.

Why has Canada changed its tune on citizens facing the death penalty?

This commentary was first published in The Lawyers Weekly on November 16, 2007, page 17

Ronald Smith of Red Deer, Alberta is slated to die the same way that Stanley Faulder of Jasper, Alberta did in 1999: by lethal injection. It can be a cruel death, leaving people gasping for air and writhing in pain while jailhouse “doctors” try to hit a vein with the poisoned needle. Observers at the 1994 execution of killer John Wayne Gacey in Illinois told reporters that the person who inserted the tube in his arm appeared to have “never taken I.V. 101”.

The two Canadians also share another trait: brutality. Faulder murdered a 75 year old Texas woman by crushing her skull with a blackjack and then stabbing her with a kitchen knife, while Smith killed two young Native Americans in Montana by shooting them with a sawed-off shotgun at point blank range in the back of the head. Two cold Canadians whose confessions left little doubt as to the identity of the killers and horror of the crimes.

And yet with all the similarities, Canada has responded in starkly different ways. In Faulder’s case, the government turned interventionist, petitioning the U.S. courts and requesting clemency from the governor of Texas. By contrast, in Smith’s case, the government has turned isolationist, refusing to intervene in a judicial system that shares the same rule of law approach as Canada.

Is Gender Really More Important than Appointing Prime Minister?

Professors Jame Stribopoulos and Moin Yahya recently published an article in the Osgoode Hall Law Journal entitled, Does a Judge's Party of Appointment or Gender Matter to Case Outcomes? An Empirical Study of the Court of Appeal for Ontario.  The abstract explains:

This study reveals that at least in certain categories of cases, both party of appointment and gender are statistically significant in explaining case outcomes.  Between these two variables, gender actually appears to be the stronger determinant of outcome in certain types of cases.  While these findings are cause for concern, this study also points toward a simple solution.  Diversity in the composition of appeal panels both from the standpoint of gender and party of appointment dampened the statistical influence of either variable.  In other words, in the case of gender, a single judge on a panel who is of the opposite sex from the others, or in the case of political party, a single judge appointed by a different political party, is sufficient to eliminate the potential distorting influence of either variable.  This finding suggests a need to reform how appeal panels are currently assembled in order to ensure political and gender diversity and minimize concerns about the potential for bias.

The methodology adopted by the authors attempted to isolate the influence on appeal outcomes of the gender and party of appointing Prime Minister composition of panels sitting on each case.  Their dataset included all reported judgments of the Court of Appeal from 1990 to 2003, a total of 4,906 cases.  The authors found that in several types of appeals that gender and party of appointment appear to have a significant effect on whether an appeal is likely to succeed.

One of the unanswered questions arising out of this study is the degree of variation in the policy preferences of the individual justices.  A methodology that is well suited to estimating these preferences is one developed by two American political scientists, Andrew Martin and Kevin Quinn.  It involves an item response theory model that is estimated using a Markov Chain Monte Carlo approach.  Stribopoulos and Yahya were kind enough to share their data so that I could estimate the policy preferences of the 40 justices who served on the Court of Appeal during this period with this different approach. 

Here is a summary of the findings:

Judicial Traits	Average Ideal Point
Conservative appointee (n = 18)	-0.131
Liberal appointee (n = 20)	0.237
Male (n = 31)	0.029
Female (n = 9)	0.263
Male Conservative appointee (n = 14)	-0.249
Male Liberal appointee (n = 15)	0.233
Female Conservative appointee (n = 4)	0.280
Female Liberal appointee (n = 5)	0.249