I wrote on Thursday about a very interesting article by Lisa Kerr, “Contesting Expertise in Prison Law,” which argues that courts should be less deferential to prison administrators and should take facts, especially social science evidence about the real-life operation of prisons and the lives of prisoners into account, as well as that lawyers need to provide judges with such facts. As promised in that post, I would like to offer a (friendly) critique of Ms. Kerr’s article, trying to put the trend of deference which she decries, as well as the strategy of enlisting social science evidence to counter this trend, which she advocates, in their broader context.
The lack of this broader context is the one thing I didn’t quite like about Ms. Kerr’s article. Although it is not an entirely fair reproach to make to a piece that is 50 pages long without being prolix, I still think that considering it might have been useful, for it would have shown that the problems that the article describes ― excessive judicial deference to supposedly expert administrators, and failure to consider the evidence of the real-life effects of these administrators’ decisions ― are not unique to the prison law context.
Start with deference. Some ― uncertain ― measure of deference is, rightly or wrongly, a standard feature of most Charter litigation. Perhaps it wasn’t supposed to be like that. In a passage from R. v. Oakes, [1986] 1 S.C.R. 103, which now seems to have been largely forgotten, Chief Justice Dickson wrote that
any s. 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms ― rights and freedoms which are part of the supreme law of Canada.
Contrast this with, say, Chief Justice McLachlin’s statement of the general approach to s. 1 in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, according to which
[s]ection 1 of the Charter does not demand that the limit on the right be perfectly calibrated, judged in hindsight, but only that it be “reasonable” and “demonstrably justified”. [37]
And then, there’s the trend towards generalized deference to administrative decision-makers, including of course correctional authorities, including increasingly in Charter cases. Contrast, again, the words of Justice Charron, writing for the majority in Multani v. Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6, rejecting an
approach could well reduce the fundamental rights and freedoms guaranteed by the Canadian Charter to mere administrative law principles, [16]
and the Court’s unanimous decision in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, which held that administrative decisions were not subject to the Oakes test at all, further that discretionary, individualized decisions (although not decisions as to the constitutionality of a law) were to be reviewed for their compliance with “Charter values” on a standard of reasonableness, not correctness.
Now this trend need not be an insuperable obstacle for the attempt to make courts rein in prison administrators. In Hutterian Brethren, the Chief Justice pointed out that courts will generally defer more to “a complex regulatory response to a social problem” than to “a penal statute directly threatening the liberty of the accused.” [37] One of the reasons Ms. Kerr’s article is important is that it shows that many decisions of the prison authorities belong less in the former category than courts may tend to suppose, and more in the latter. Indeed, Ms. Kerr suggests that using expert evidence can help the prisoners’ lawyers make these decisions appear less complex, and more penal, than judges, who are not familiar with the prison environment, are inclined to believe. This is a most interesting ― and somewhat subversive ― suggestion.
Unfortunately, it may not be easy to get lawyers to adopt it, and judges to go along. Lawyers’ and judges’ reluctance to deal in facts is also a tendency that affects much more than prison law. Richard Posner bemoans it in his recent book of Reflections on Judging ― which is why I described Ms. Kerr’s article as “an almost Posnerian plea for judges to be attentive to facts and, in particular, to the information that various experts can provide about prisons, when they adjudicate constitutional claims brought by prisoners, as well as for lawyers to provide judges with such information.” Indeed, Judge Posner specifically notes that “[f]ew federal judges, or for that matter prosecutors and defense attorneys, are familiar with … studies” dealing with the economics of imprisonment and alternative forms of punishment, including the costs and benefits to society and offenders. (68) But that is just one example, one complaint in a litany. Judge Posner makes a compelling argument that “[w]e need evidence-based law across the board, just as we need evidence-based medicine across the board,” (62) but his book offers no easy paths to get there. As he points out, judges tend to share
a professional mind-set that often includes — along with impartiality, conscientiousness, and other traditional attributes of a good judge — lack of curiosity, a feeling of intimidation by science and technology, and a lack of interest in obtaining an empirical rather than merely intuitive grounding for one’s beliefs. These attitudes communicate themselves to the bar , [creating] an unfortunate feedback effect because of the dependence of judges on lawyers in our adversarial legal system. (92-93)
This is the problem Ms. Kerr’s argument is up against and, to repeat, it is not unique to prison law. What is more, as Judge Posner points out, the two trends of deference to administrative decision-makers and reluctance to engage with complex facts are related. “[W]hen they don’t understand the activity from which a case before them has arisen,” (85-86) he writes, judges often seek to avoid deciding it themselves. One way to do that it is to let it
be answered by administrative agencies to which judges defer on the often fictitious ground that the agencies have “expertise,” even if their adjudicators are poorly trained, horribly overworked, highly politicized, or all these things at once. (86)
These trends can be overcome. Ms. Kerr holds up the Supreme Court’s decision in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68, which granted all prisoners their voting rights under s. 3 of the Charter, as a hopeful example and model. Yet as Michael Pal’s study of the role of social science evidence in the Supreme Court’s law of democracy cases shows, its rejection of deference is unusual not only in the prisoners’ rights jurisprudence but also in that on democratic rights and freedoms. This jurisprudence, not coincidentally, is also largely characterized by judicial unwillingness to engage with relevant facts and social science evidence. “[L]ogic, reason and some social science evidence” are enough, the Supreme Court’s majority said in Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33, at par. 78, even as it blithely ignored the dissent’s warnings about the speech-stifling real-life effects of the provisions of the Canada Elections Act whose constitutionality it was upholding. The fight for evidence-based law will have to be fought on all fronts ― in prisons and outside.
For this reason, Ms. Kerr’s article’s showing how a sufficiently well-prepared case may be able to overcome these obstacles is perhaps even more important than she lets on. Of course, there are other examples too. In the area of the law of democracy (and in the United States), Judge’s Posner’s recent opinion ― albeit one dissenting from denial of rehearing en banc ― in Frank v. Walker, a voter-ID case is another. (It is also proof that even individual judges can be made to change their mind when presented with compelling evidence.) The Supreme Court’s recent decisions regarding the rights of injection drug users and sex workers, to which Ms. Kerr refers, are two more. They are, just like the recent prisoners’ rights cases Ms. Kerr extols, part of what Kerri Froc described as an “empirical turn in Charter jurisprudence,” on which I have been writing quite a bit here.
The “empirical turn” creates many problems, not the least of which is the length and expense (quite apart from the difficulty) of putting together a compelling record. In Sonia Lawrence’s words,
these aren’t cases that walk into your office one day. They are cases put together piece by painstaking piece. It’s a long road to justice this way around, folks.
Ms. Kerr’s article is a reminder that it might also be the only road there is. And a suggestion as to how to travel it that little bit faster.
Double Aspect 
thank you Leonid, this is very useful. I agree that deference is a proper part of our administrative and constitutional law traditions. The point of the piece, as you have so aptly summarized, was to highlight a handful of mostly trial judges in Canada who have articulated a peculiar standard of deference in prisoner cases which is extreme and unjustified, and how the US Supreme Court has done the same at times. I like your characterization: I was indeed trying to make a more “subversive” point, which is that the deference offered in many prisoner cases may be more about ‘judicial avoidance’ and accepting ‘untested expertise’ from punitive spaces rather than its more legitimate cousin of respecting ‘a complex regulatory response’. I think it helps to historicize prison law, where we see that courts have long had a preference towards a “hands off” approach, perhaps for psychological reasons. We agree on all of this. The only place I would push back is to say that, while I may not have expressed myself clearly enough, I actually didn’t mean to characterize the Sauvé decision as all that hopeful. It articulates some nice principles but on the facts voting is an ‘easy’ occasional right (as Jacob Weinrib helped me to articulate) rather than one that conflicts with the daily preferences of prison administrators. The latter cases are where things get tough and the problems of presumed expertise and undue judicial hesitation are at risk of kicking in. So we shouldn’t celebrate Sauvé as a sign of our commitment to prisoners’ rights, but we should try to extend it. (Efrat Arbel makes this argument in a forthcoming Canadian Journal of Human Rights piece, which I cite in my piece and recommend.) Ok, finally, regarding the “empirical turn”, I think Sonia Lawrence and Kerri Froc are absolutely right, descriptively and in terms of the challenges. And, I describe in a footnote how Emma Cunliffe gave me some smart warnings about the potential implications of my argument here. But you’re right Leonid: my point is not to stick it to the government, but to say that if we are going to decide things in court it can surely be only by the evidence. So I’m surprised to find myself a Posnerian but it sounds like that’s right! And as for putting cases together piece by painstaking piece: yes. That’s what counsel in Insite, Bedford, Carter, Bacon, Inglis are all up to, and we have much more work to do. thanks again for engaging!