The Elephant in the Conference Room

In my post discussing the Supreme Court’s recent decision in R. v. Fearon, 2014 SCC 77, which held that (some) warrantless searches of cell phones incident to arrest were constitutional, I “wonder[ed] whether Justice Cromwell was swayed by his conclusion ― irrelevant and apparently unsupported ― that the robbery of which Mr. Fearon is accused is ‘a crime that has become depressingly routine.’” [5] I’m not alone in having found Justice Cromwell’s comments strange. Unlike me, however, Addison Cameron-Huff has done the right thing and fact-checked them.

What Mr. Cameron-Huff has found is that armed robberies have become much less, not more frequent in the last 15-20 years. He points, for instance, to Statistics Canada finding that between 1999 and 2008, the incidence of armed robberies went down by more than 25%, and that of armed robberies involving a firearm, by more than 35%. I guess it’s possible that this trend was reversed in the last few years, but that seems not likely at all: the RCMP points out that one particular type of armed robbery, namely “[b]ank holdups have declined even more dramatically — 46 per cent — across the country from a total of 1,098 robberies in 2000 to 591 in 2012,” while Statistics Canada reports that the overall robbery rate has gone down by 17% between 2002 and 2012.

Mr. Cameron-Huff also notes that he couldn’t “find any reference in the factums filed by the parties to an increasing crime rate. Justice Cromwell seems to have taken judicial notice of this (incorrect) statistic.” Less politely, one might suggest that Justice Cromwell took that “statistic” out of thin air. To be sure Justice Cromwell’s words might be (very charitably) read as suggesting that armed robberies are now considered not to be a big deal, rather than that they are more common. Yet not only would that reading be a stretch, but that assertion too would be unsupported by anything.

That a Supreme Court opinion would make such unsupported assertions ― as best we can tell, falsifiable, and actually false, unsupported assertions ― is remarkable. One thought here is that, for all the problems with social science evidence that I have been blogging about here and elsewhere, it is even worse when courts assert “facts” on which such evidence bears without looking at that evidence at all. Relatedly, it might be bad when judges google, but even worse when they make assertions that a fairly simple search would have proven wrong.

It is also remarkable, I think, that Justice Karakatsanis’s dissenting opinion ― which I otherwise quite like ― does not challenge Justice Cromwell on this point at all. Did Justice Karakatsanis think that Justice Cromwell’s assertion is not important? Did she not want to make her dissent more confrontational than it needed to be? Or did Justice Karakatsanis, as well as Justices Abella and Lebel, who dissented with her, not realize that Justice Cromwell was wrong? Did they not even suspect that he might be, enough to ask a clerk to check? That last possibility, suggesting that the Supreme Court is at serious risk of not noticing the elephant of falling crime rates in its conference room when it discusses future criminal law cases, is deeply worrying.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

3 thoughts on “The Elephant in the Conference Room”

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