Hidden Biases v An Open Mind Andrew Green University of Toronto Faculty of Law Nov 5, 2015

R. v. Fearon (SCC 2014) Two men, one with distinctive handgun, rob a jeweler Kevin Fearon arrested – Officer found cellphone on him – looked through texts

R. v. Fearon (SCC 2014) Two men, one with distinctive handgun, rob a jeweler Kevin Fearon arrested – Officer found cellphone on him – looked through texts No warrant – Fearon claimed search of his phone was illegal “We did it”

R. v. Fearon (SCC 2014) Search was legalSearch was illegal

R. v. Fearon (SCC 2014) Search was legalSearch was illegalAppointed by: Progressive Conservatives Conservatives Liberals Conservatives

Two Views of How Judges Make Decisions Legal: “Judges are like umpires. Umpires don’t make the rules; they apply them … It’s my job to call balls and strikes and not to pitch or bat” Chief Justice John Roberts, US Supreme Court Political: “More and more people think that what’s important to us is political and that this is nine junior varsity politicians.” Justice Stephen Breyer, US Supreme Court

United States Supreme Court

United States Supreme Court

What about the Supreme Court of Canada?

How about Charter cases?

Design Matters Courts, like tribunals, have different designs that affect the influence of biases Most basic: How are tribunal members appointed? Focus on: – Who do you sit with on a panel? – How do training and norms help?

Who do you sit with on a panel? Three Judge Federal Court of Appeals Panels

Who do you sit with on a panel? Probability of Plaintiff Winning

Training and Norms The Wildlife Environment Protection Act prohibits ‘littering, disposing or depositing any form of garbage, refuse, junk or other debris’ on land designated as a national wildlife preserve. 400 ten-gallon reusable plastic dispensers of drinking water along 50 mile stretch of wildlife preserve on US-Mexico border. Participants received one of these sets of facts: – The defendants are construction workers who placed the dispensers along stretch of border where they were constructing ‘border fence’ to keep out illegal immigrants. – The defendants are immigration aid workers who left the water to be consumed by undocumented migrant farm workers who face high risk of dehydration attempting to cross border.

The Defendants DID Litter

Hidden Biases v An Open Mind Tribunal Design Matters – Appointments – Composition of Panels – Training and Professionalism