While it’s impossible for them to come to the bench without a distinct view of the world, a panel of judges maintained recently that it’s their duty to keep cultural biases in check when deciding a case.
“Judges who are tough Crown attorneys become judges who are sympathetic to the defence,” said Ontario Court of Appeal Justice Russell Juriansz. “Defence counsel become really tough law-and-order judges.
How somebody exercises their role depends on them as an individual and not on any group that they can be put into.”
The comments came as Ontario judges weighed in during a legal conference last week on controversial remarks by newly appointed U.S. Supreme Court Justice Sonia Sotomayor in 2001 when she was on the appeals court. The panel was part of the Federation of Asian Canadian Lawyers’ third annual conference on Nov. 7 at the University of Toronto.
“Whether born from experience or inherent physiological or cultural differences . . . our gender and national origins may and will make a difference in our judging,” Sotomayor, the U.S. top court’s first Hispanic judge, told an audience at the University of California Berkeley School of Law.
The quote seemed to challenge the notion, famously claimed by former U.S. Supreme Court justice Sandra Day O’Connor, that a wise old man and wise old woman would reach the same decision when faced with an identical set of facts.
Juriansz, who was born in India and in 2004 became the first non-white judge appointed to the appeal court, said he doesn’t consider Sotomayor’s comment to be controversial at all. He said he made his thoughts on the topic clear when he was sworn in to the bench.
“A court of appeal is not a representative assembly. My function on the court, like that of other judges, is to exercise my individual judgment on issues that come before the court,” said Juriansz, restating that speech at last week’s conference.
“Having said that, I’m a product of my life experience, my personal history, the fact I was born in India, came to Canada when I was eight, and my experiences growing up and living here since then cannot be separated from the professional qualities that I bring to the court.
If I were not who I am, I would not have had the unplanned legal career that has led to this appointment.”
Justice Manjusha Pawagi, a family court judge at the Ontario Court of Justice in Brampton, said there is no singular neutral position for judges to draw on.
“We all have our biases, our viewpoints, and our prejudices,” she said.
Pawagi suggested it’s up to judges to become aware of their distinct perspectives on issues and develop methods of keeping them in check.
“When we look at judging, what we’re asking as a society of our judges is that we ask them to take on the awesome responsibility of being aware of their biases, scrutinizing them, and making sure that they’re not relying on them inappropriately in their decision-making,” she said.
Justice Shaun Nakatsuru, also of the Ontario Court, framed his view of Sotomayor’s comment around the issue of “social-context” judging. Nakatsuru, whose father was one of thousands of Japanese-Canadians interned during the Second World War, said judges “cannot escape who we are.”
“The social context of any case we decide is going to be more or less important but that has to be viewed through the perspective of our own background,” he added.
Nakatsuru referred to the 1997 Supreme Court of Canada ruling in R. v. S. (R.D.), which set guidelines for ruling whether judges have demonstrated a reasonable apprehension of bias. The decision also offered instruction on the use of social-context judging.
The case involved police actions against a young black man in Halifax who had allegedly interfered with officers making an arrest. Questions arose about the possible bias by the judge who acquitted the man due to references about prevalent racial attitudes among police at the time.
The top court determined the judge’s decision was not biased and went on to elucidate on social-context judging. Nakatsuru described the technique as calling on judges to “be impartial and have an open mind.”
He said he uses social-context judging, for example, in assessing an accused person’s reaction when confronted by police. Nakatsuru said his background suggests that someone who runs away from police has something to hide.
But he said a person from a different part of the country with a separate experience with police might run from officers even if they don’t have something to hide.
“So the act of conscious social-context judging simply means I should open my mind to the fact that, for this individual, fleeing from the police may not necessarily mean that the person may be guilty of some criminal behaviour,” he said.
Juriansz, meanwhile, told the conference it’s impossible to predict the opinions of individual members of racialized groups. He cited, as an example, U.S. Supreme Court Justice Clarence Thomas, who is black. Thomas grew up in a poor community in Georgia and went on to spend part of his career working for a national anti-discrimination
organization yet has garnered a reputation as one of the court’s most conservative judges.
“So you just cannot predict,” said Juriansz.