Inside the Empirical Turn

A judge’s take on dealing with the social science evidence involved in Charter litigation.

I have written about the doubts that I and others have about the increased reliance of Canadian courts on social science evidence in rights litigation. A recent decision of the Supreme Court of Nova Scotia, Trinity Western University v. Nova Scotia Barristers’ Society, 2014 NSSC 395, seems to me to suggest that to some judges, at least, this “empirical turn,” as it’s been described, does not come quite naturally.

The University has applied for judicial review of the Barristers’ Society decision to require it to abandon the “covenant” it imposes on its students, which among other things prevents them from engaging in sex outside a heterosexual marriage, before recognizing its law school’s degrees. The application has not yet been heard on the merits. In the meantime, the University has applied to strike parts of affidavits submitted by the Society’s witnesses, on the basis that they contained “material that amounts to a submission, plea or argument. The concern would be that the arguments might be accorded more weight or deference by virtue of their being sworn and in a report of an expert. Expert opinion and argument can be confused.” [23]

As Justice Campbell explains, these affidavits, despite their ostensible form, “are essentially reports intended to provide expert opinion,” [3] one of them on “the history of discrimination against gays, lesbians and other sexual minorities, the effect of exclusion on sexual minorities and the role that the state has taken in combatting that discrimination” [3] and the other on “the effects of the [University’s] covenant on sexual minorities” and “the impact on recruiting sexual minorities if the [Society] were to recognize degrees from [the University’s] proposed law school.” [4]

Justice Campbell’s explanation of the differences between this evidence and that which courts are used to is worth quoting at length:

[5]     These affidavits, as evidence, occupy a grey area. Affidavits are intended to be statements of facts. They do not contain opinions about evidence or speculation about what evidence could be. But expert reports are intended to convey an opinion based on assumed facts using specialized knowledge, training or experience. These are both affidavits and expert reports. Strictly applying the rules that pertain to affidavits would be impractical.

[6]     Reading through the affidavits gives a sense of just how different they are from the usual, sometimes rather dry, recitation of facts found in an affidavit. They clearly contain information that is not within the personal knowledge of the affiant. Of course they contain opinions. They also include statements that are intended to persuade.

[7]     They are also a departure from what might normally be expected in an expert report. It’s a bit hard at times to differentiate between conclusions based on expertise, assertions of facts, and advocacy.  The reports contain statements about historical events and trends that are supported by their assertion with no intent that they be subject to formal proof.

[8]     The language used is at times powerful. It is at times impenetrably academic. And, at other times takes the form of advocacy. One is not left in any doubt at all about whether these experts have a definite view about what the outcome of the matter should be. … That isn’t what an expert opinion has traditionally sounded like. It isn’t what affidavits have traditionally sounded like either.

[10]   Technically, a report of an expert would contain a statement of assumed facts that would have to be proven in court. The expert would then offer an opinion or a theory relevant to the case, using training, knowledge and expertise of a kind not possessed by the judge. That opinion would be based on those assumed and to be proven facts. That opinion would be testable or verifiable.

[11]   Charter litigation has changed that.

[12]   Social science evidence is critical in making decisions on the interpretation of the Charter especially when those matters involve public policy. Reports from experts in those areas convey a kind of information that may be quite different. The way in which those reports are used by courts can also be quite different. Adjudicative facts are those that are proven by evidence and relate directly to the subject matter of the proceeding. Judges can take judicial notice of facts that are widely known and beyond dispute. Social science evidence or legislative facts fall between those more traditional categories.

[14]   The Supreme Court has noted that when social and legislative facts are put before a trial judge he or she has to “evaluate and weigh that evidence in order to arrive at the conclusions of fact necessary to decide the case”. The trial judge can be involved in a time consuming exercise of reviewing material and reconciling differences between the experts, studies and research results.  Social and legislative facts are also intertwined with adjudicative facts. The judge has to analyze and give appropriate weight to the evidence in its different forms.

[15]   Social science evidence is presented through expert witnesses. The assessment of that evidence relies heavily on the trial judge. Social science evidence will necessarily be different from the reports of experts in the natural sciences. In those areas, where there are controlled experiments, testable predictions, and quantifiable data an expert opinion will usually involve the application of rigorous testing methods. There is no hierarchy of sciences and social sciences are no less rigorous than natural sciences. That statement itself could be the subject further debate requiring expert opinion.  Suffice it to say, social sciences and natural science are just different.

[16]   A trial judge has to consider the reliability of the particular social science evidence. If the report goes beyond the scope of the expertise of the writer, that has to be considered. If it is tendentious, or argumentative, or unbalanced those are considerations as well. Social science evidence that is supported by empirical research may be given different consideration from that which is based on anecdotal observation.

To dispose of the University’s motion, Justice Campbell applied a two-part test developed by Justice Doherty, of the Court of Appeal for Ontario, in R. v. Abbey, 2009 ONCA 624, for the admissibility of such evidence. As he described it,

[17]   …  First, the party who puts forward the evidence has to show the existence of some preconditions to the admissibility of expert evidence. The proposed witness must actually be an expert. The opinion has to relate to a subject matter that is properly the subject of expert evidence.  The opinion has to be logically relevant to a material issue. Finally, the opinion must not “run afoul of any exclusionary rule apart entirely from the expert opinion rule”.  …

[18]   Second, if the trial judge decides that the expert evidence meets the preconditions of admissibility, the issue is whether it’s sufficiently beneficial to the trial process to warrant its admission. That involves a discretionary cost-benefit analysis.  The “costs” in that analysis are “a consumption of time, prejudice, and confusion.” The benefits are found in the potential value of the evidence to actually prove something of significance. Whether the expert evidence does indeed have that potential requires a consideration of the reliability of the evidence. Reliability can be assessed by considering the subject matter of the evidence, the methodology used by the expert, the expert’s expertise and the extent to which the expert is shown to be impartial and objective.

Reviewing the affidavits in detail, Justice Campbell rejected most of the University’s concerns. However, he observed that one of them contained “parts … that amount to commentary on the current state of Canadian society, politics and public opinion,” [40] and the other “advocacy on the very matter before the court … openly and unapologetically argumentative.” [59] Nevertheless, he refused to strike any part of the affidavits, holding that “[t]he elements of argument contained in both involve the kind of prejudice that can be minimized by acknowledging them for what they are.” [60] Justice Campbell added that it was better to let the merits judge see the “report” ― he regularly referred to the purported affidavits in that way ― in its entirety, in effect suggesting, it seems to me, that these argumentative parts might cause the judge to discount the weight to be given to the affidavits’ conclusion.

This slightly subversive conclusion is probably right. Yet it also suggests that my and others’ worries about the “empirical turn” are not groundless. As I explained here, I do not believe we should renounce any and all resort to social science evidence. But as Justice Campbell makes clear, this evidence is quite different from what judges, especially trial judges, are  used to. It almost inevitably contains advocacy, backed by an expert’s aura of credibility on topics judges are likely not be well-versed in. Judges need to pay attention to research methods and weigh the reliability of the studies put before them, but how many of them are trained to do so? Arguably, it would be useful to have some guidelines on dealing with such evidence laid down by appellate courts, but since the Supreme Court held, in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, that they must defer to the trial judges’ findings, they are not really in a position to do so. In short, as I have already suggested, the “empirical turn” could well take us off course.

More Dead than Ever

While the Supreme Court is getting ready for the oral argument in Québec’s challenge to the abolition of the long-gun registry by the federal government (set for October 8), a different challenge to the constitutionality of the Ending the Long-Gun Registry Act was dismissed by Ontario’s Superior Court of Justice earlier this month in Barbra Schlifer Commemorative Clinic v. Canada, 2014 ONSC 5140. Justice Morgan held that, contrary to the Clinic’s claims, the abolition of the gun registry did not infringe the right of women either to the security of the person or to equality, and thus did not contravene sections 7 or 15 of the Charter.

Justice Morgan began his s. 7 analysis by discussing the “state action problem” with the Clinic’s argument. The Clinic claimed that the abolition of the gun registry infringed s. 7 because it increased the risk that women would suffer gun violence, in particular from their domestic partners. In its view, its argument was similar to those that prevailed in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134 (the Insite case) and in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, where the Supreme Court found, respectively, that a denial of an exemption from drug laws to a safe-injection clinic and the prostitution-related provisions of the Criminal Code infringed s. 7 by increasing the risks to which the clinic’s users and sex workers were subject. But the fact a government policy fails to reduce a risk to which a person is exposed as much as possible is not enough, Justice Morgan found:

[c]ontemporary society is permeated by risk, including the risk of violent crime and injurious use of firearms, but unless that risk is a creation of state intervention it is not within government’s constitutional responsibilities. (Par. 25; emphasis mine.)

There is, furthermore, a crucial difference between the alleged increase of risk as a result of the abolition of the long-gun registry and the facts of the Insite case and Bedford, in that in those cases the government had prevented people from taking steps, on their own, to minimize the risks they were subject to, whereas the gun registry is a government-created risk mitigation scheme (if indeed it is that). The upshot of the Insite case and Bedford is that the government cannot prevent people from reducing the risks they run, not that it has a duty to do it by itself. Indeed, Justice Morgan pointed out,

[t]he Supreme Court indicated in Bedford, at para 88, that while the state cannot make prostitution even riskier than it is, the claimants [in that case] were “not asking the government to put into place measures making prostitution safe” (par. 34).

When Parliament itself creates a risk-reduction scheme, it can expand or limit it as it in its wisdom sees fit. So long as it doesn’t interfere with people’s autonomous risk-reduction endeavours, it does not act unconstitutionally.

The Clinic’s position also suffered, according to Justice Morgan, from a “baseline problem.” As he saw it, the Clinic

use[d] the 1995 Firearms Act [which had created the long-gun registry] as a baseline against which to measure the [new] licensing and registration system … , and finds the latter lacking. In the Applicant’s characterization, while the regulatory regime that existed from 1995 until … 2012 “provided an essential element in the effective protection for the s. 7 rights of women”, the “[Ending the Long Gun Registry] Act’s purpose appears to relate primarily to political aims”. (Par. 41)

But a statutory scheme cannot be made into a constitutional standard in this way. The gun registry’s creation was no more “politically neutral” than its abolition (par. 45). It was a choice of policy and politics, and it can be reversed or revised.

Justice Morgan then turned to the evidence which the Clinic adduced in support of its s. 7 claim, and found it insufficient. That evidence seems mainly to have consisted of statistics showing that gun violence declined in Canada while the long-gun registry was in operation. But, Justice Morgan said, gun violence had been declining before the registry was set up, and the early indications are that gun violence against women has not increased after it was abolished. In fact, as the government argued, there is a long-term trend towards the reduction of violent crime, so that what the Clinic showed was correlation, but not causation. Furthermore, police officers ― including those who served as the Clinic’s expert witnesses ― suggest that the effectiveness of gun registration (as opposed to licensing and background checks, which the abolition of the registry does not affect) is debated and, at best, limited. Thus even if an increase of risk resulting from the abolition of the long-gun registry were a constitutionally cognizable harm, the Clinic, in Justice Morgan’s view, had not demonstrated that the abolition had that effect.

Justice Morgan found that similar evidentiary problems undermined the Clinic’s claim that the abolition of the long-gun registry infringed the Charter’s equality guarantee becaused it would disproportionately affect women would be the victims of domestic gun violence. Again, there is evidence that gun both violence and domestic violence are decreasing. But given the multiplicity of causes likely to be involved, it is very difficult to isolate the gun registry’s role, if any, in these processes. The point, Justice Morgan said, is “not that there is no place for statistical data, but rather that statistical data can rarely, if ever, do the work of proof on its own” (par. 100). Nor was there anything to show that whatever effects the abolition of the gun registry might have on women were discriminatory in the sense of stereotyping or perpetuating past disadvantage. The overall statutory scheme for regulating firearms still tries to reduce gun violence, including in particular gun violence against women. Changing the mix of criminal and regulatory elements in that scheme was not, Justice Morgan said, discrimination.

I think this is the right decision. Justice Morgan’s point about the “state action problem” and the “baseline problem” are well taken, and his concerns about the insufficiency of the evidence to show that the gun registry’s abolition would have the disastrous consequences its supporters expect are justified.

I don’t know whether the Clinic intends to appeal his decision, but its chances of success would be very low indeed, given the Supreme Court’s insistence, in Bedford, that a trial judge’s assessment of social science evidence in constitutional cases is entitled to as much deference on appeal as any other form of fact-finding. Even if Justice Morgan were wrong in has approach to the issue of state action (and I don’t think that he is), his conclusions regarding the evidence would still stand.

For better or worse, this is the brave new world of Charter litigation ― a world in which cases live and die depending on the lawyers’ ability to assemble an evidentiary record and to convince a trial judge of this record of that record’s persuasiveness. And as I wrote here in discussing the potential dangers of this approach, “[t]he government, as the best funded and most powerful interest group of them all, is more likely to have the resources to put together a solid record than those who challenge it.” So here the government was able to show that the general trends in crime reduction, and its other (purportedly) crime-preventing policies meant that it was not possible to establish the effects of the gun registry’s abolition or continued existence with any degree of certainty.

This is not to say that I regret the outcome of this particular case, though others will find it regrettable. I will, however, note the irony of the government’s reliance on statistics showing a long-term general decrease in crime to defend this one element of its criminal-law legislative programme while implementing other, “tough-on-crime,” policies with a total disregard for these statistics. I hope that the courts which will consider the constitutionality of these measures will take good note. The gun registry is more dead than ever ― though the Supreme Court might still resurrect it in Québec. But in killing it, the government might just have inflicted some collateral damage on its other policies. No regrets from me there, either.

The Empirical Turn

In a post on the National Magazine’s blog, Kerri Froc discusses (among other things) what she refers to as “the empirical turn in Charter jurisprudence” ― the  tendency of Courts to decide Charter cases on the basis of social science evidence instead of “expounding on the nature of human values embodied by rights.” Perhaps most recent Supreme Court decision exemplifying this trend is the one in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101, which invalidated the provisions of the Criminal Code relative to prostitution. I had some thoughts of own on this topic here, so it is interesting to compare notes.

If I understand her correctly, Ms. Froc worries that increased reliance on social science evidence, in tandem with a narrow and technical approach to the application of the Charter, may lead to “democratic deficits” in rights adjudication. In particular, these twin trends, and the corresponding judicial retreat from more “abstract forms of philosophic reasoning,” cause “Charter analyses to become more divorced from the actual realities represented in the case,” while leaving the courts with excessive discretion in their treatment of the evidence, which they can use to either enable or stifle rights claims. Although Ms. Froc questions whether a more philosophical approach to the Charter would produce “more consistent and democratic outcomes,” she seems to suggest that it would at least be preferable from a process standpoint.

My own doubts about the direction in which the “empirical turn” is leading us concern both process and outcomes. Starting with the latter, my worry is specifically that deferring to findings of social science-based “legislative facts” by trial judges, as Bedford requires appellate courts to do, will lead to more mistakes than either more principle-based judicial decision-making or even a fact-based adjudication that allowed plenary review of such findings of fact on appeal. This is in part because trial judges may lack the skills to engage with social science evidence, and in part because, since trial judges sit alone rather than in panels, mistakes that they will make in assessing such evidence will not be caught before they issue their decisions. Besides, the government, whose resources are much larger than those of any civil-society organization, will be at an advantage in the evidentiary food-fights required by the “empirical turn.” We not are noticing this yet, because the current government is incredibly evidence-averse, and often legislates without bother to collect any facts at all, but that may change with the bill it is preparing in response to the Bedford judgment. Furthermore, the requirement to put together voluminous and complex social-scientific records to support Charter claims can not only lead adjudication astray, but slow down and maybe even prevent the filing of meritorious Charter claims.  As Sonia Lawrence put it, “[i]t’s a long road to justice this way around, folks,” given the time it takes to put together such records (and the money necessary to do so).

As for my process-related concerns, they might, like Ms. Froc’s, also be described as having to do with democracy, at least in a broad sense. One such concern is with accountability. Shifting the weight of rights adjudication from principle-based reasoning by appellate courts to fact-finding at trial risks making it less visible, especially to the media which tend not to devote nearly as much attention to the decisions of trial courts as to those of the Supreme Court. As I wrote in the post linked to above,

under the Supreme Court’s approach in Bedford, by the time a case comes up for appeal, and eventually reaches the highest ― and most visible ― court, it may well already be effectively decided. The Supreme Court can then avoid responsibility for controversial decisions, saying that “the trial judge made us do it.” (Indeed, I wonder whether this was not the real attraction of this approach to the Supreme Court in deciding Bedford.) Call it judicial leading from behind.

My second “democratic” concern with the “empirical” turn is that the costs and difficulty of assembling a trial record required by this approach will make Charter litigation the province of well-funded organizations and interest groups, leaving individuals without such support unable to pursue their claims.

The irony of it all is that the “empirical turn” in rights adjudication is probably motivated by judicial concerns over the “democratic deficit” of judicial decision-making in the realm of social policy and/or morality. As I wrote earlier, it seems likely enough that

the Supreme Court prefers to rely heavily on fact-finding ― preferably on fact-finding by others ― in order to avoid responsibility for controversial decisions, or at least, to put the point less harshly, in order to make such decisions appear more inevitable and hence less questionable and more legitimate.

Yet if Ms. Froc or I are right about the problems we see with the “empirical turn,” this strategy risks backfiring and making judicial review appear deeply problematic, perhaps even “undemocratic” ― to an even greater extent than it necessarily, and rightly, is. The point, as I argued here, is not that courts should ignore social science evidence altogether. In some cases, an “empirical turn” can be a useful contribution, perhaps even a correction, to Charter adjudication. But courts should be aware of its dangers, and should try to mitigate instead of compounding them. If that makes them appear more assertive and powerful, they need to take responsibility. Strong judicial review is not for the faint of heart.

Lies, Damned Lies, and Judicial Review

As the federal government considers its response to the Supreme Court’s ruling in Canada (Attorney General) v. Bedford, 2013 SCC 72, which invalidated the prostitution-related provisions of the Criminal Code, one can be forgiven for wondering whether its response will be guided by facts and research, or by ideology. Unfortunately, as a depressing but important guest post by Maggie McNeill on the Washington Post’s “The Watch” blog (run by Radley Balko, a civil libertarian) shows, when it comes to sex work, facts and ideology are often inextricably linked.

Ms. McNeill writes that

many of those who represent themselves as sex work researchers don’t even try to get good data. They simply present their opinions as fact, occasionally bolstered by pseudo-studies designed to produce pre-determined results. Well-known and easily-contacted sex workers are rarely consulted. There’s no peer review. And when sex workers are consulted at all, they’re recruited from jails and substance abuse programs, resulting in a sample skewed heavily toward the desperate, the disadvantaged and the marginalized.

Much of what passes for research on sex work, says Ms. McNeill, is produced not by impartial researchers, but by interest groups campaigning for the prohibition of any and all forms of prostitution, who often try to present them as invariably involving sex trafficking and exploitation of children, knowing that this is the most effective way to produce the response they desire from the public, the media, and legislators. Ms. McNeill also points out that the very fact that prostitution is criminalized in most of the world makes reliable statistics hard to come by (although even for countries where much sex work is legal, biased “researchers” choose to focus on its illegal side). Yet the media, which shape the perceptions of the issue among the general public and legislators, swallows dubious or outright distorted figures whole, without questioning the methodologies by which they are arrived at. (The Economist’s recent article based on a “study” which, as Ms. McNeill points out, involved fewer than 40 sex workers, drawn from one small segment of the profession, is a sad example of this trend, from a supposedly intellectual publication.)

The reason I am writing about this, apart from the obvious importance for all of us as citizens of being wise to what is going on, is that the litigation which will almost inevitably follow Parliament’s response to Bedford (especially if, as rumour has it, this response will include a criminalization of the purchase of sex) will heavily rely on studies of and statistics about sex work. What is more, under the Supreme Court’s holding, in Bedford, that the findings of “legislative fact” by a trial judge are entitled to full deference appellate courts, the way these studies and statistics will be handled at first instance is likely to determine the outcome of the new constitutional challenge, just as they determined that of Bedford itself.

As I wrote in my comment on what Bedford meant for the future of Charter litigation, this is a worrying perspective:

Trial judges ― most of whom are former litigators, without any sort of systematic training that would make them suitable for assessing social science evidence from which “legislative facts” are drawn ― are not chosen in the expectation that they will exercise determinative influence on the outcome of key constitutional cases. Many trial judges are capable of undertaking this responsibility. But many, with the best will in the world, are not. Of course, this may be true of appellate judges too, although presumably more of them are chosen for their expected capacity to deal with important, challenging cases. More importantly regardless of initial qualifications, appellate judges are more likely to develop an expertise relevant for exercising such functions, because there are relatively few of them, so that each one is much more likely to come across complex constitutional cases than a trial judge, of whom there are relatively many, so that each one may face significant constitutional cases only once or twice in his or her career. Furthermore, appellate judges do not sit alone. This means that the odds that an individual judge’s error will be caught and corrected before the court’s decision is issued are higher. Shifting power in constitutional cases from appellate to trial courts may thus lead to more errors in the dispositions of such cases.

The federal government will go into any new litigation armed with a record made up of studies and statistics about sex work ― in all likelihood, studies and statistics of the sort Ms. McNeill describes. A lot will depend on whether the lawyers who will challenge it will be up to the task of exposing the flaws of such a record. But, ultimately, the outcome of the case is likely to depend on the ability of just one trial judge to understand and critically assess this evidence. With all due respect to trial judges, I find this disquieting.

Off Course

In my post on  Canada (Attorney General) v. Bedford, 2013 SCC 72, the Supreme Court’s recent decision striking down the prostitution-related provisions of the Criminal Code, I said I would have some thoughts on what this decision means for the future of Charter-based judicial review in Canada. As Churchill said, it is a dangerous thing to make predictions, especially about the future. And I have little reason to believe that I am particularly qualified for prognostication. Still, I can at least ask questions, and point out some dangers ahead on the path on which the Supreme Court seems to be headed.

I speak of dangers because elements of the Supreme Court’s approach to deciding Bedford bothered me. In a nutshell, I am very uncomfortable with the Supreme Court’s insistence on deference to the trial judge’s fact-finding, and the key role it played in the decision. Excessive reliance on and deference to first-instance fact-finding risks shifting power to people neither expected nor prepared to wield it, undermining what little accountability there is in the judicial review process, and making Charter litigation the tool of interest groups rather than of individual citizens harmed by the government.

The Supreme Court’s conclusions in Bedford that the prostitution provisions of the Criminal Code endanger sex workers, and even that they are unrelated or disproportionate to their purposes, are largely endorsements of the findings of the judge of first instance on these points. Perhaps this is inevitable given the framing of the case as being one about security of the person (as opposed, say, to liberty). But, before reaching these conclusions, the Supreme Court also commented on the approach appellate courts must generally take to findings of fact in constitutional cases. It rejected the distinction, made by the Ontario Court of Appeal, between the levels of deference due to findings of “adjudicative facts” ― that is, facts about the parties and witnesses, their actions, and their credibility ― and findings of “legislative facts” ― that is, the broader social context of the dispute, and in particular the background and effects of the legislation at issue. The Supreme Court holds that the two sorts of facts are to be treated the same: a trial judge’s findings are conclusive barring a “palpable and overriding error” (par. 48). This is both because judicial resources must be preserved, making it undesirable for appellate judges to delve into the (often voluminous) record assembled by the parties, and because the two sorts of facts are often intertwined and difficult to distinguish.

Thus, fact-finding ― including “legislative” fact-finding ― at trial is likely to define cases all the way up to the Supreme Court. Furthermore, the Bedford decision also encourages litigants to frame their cases as intensely factual. A party needs only to convince a trial judge to adopt its vision of the facts, and its success in the case may well be locked in, avoiding the risks and difficulties of convincing 12 (or 14) appellate judges.

This makes trial judges very powerful in Charter cases. Yet there is reason to question whether this empowerment is a good idea. Trial judges ― most of whom are former litigators, without any sort of systematic training that would make them suitable for assessing social science evidence from which “legislative facts” are drawn ― are not chosen in the expectation that they will exercise determinative influence on the outcome of key constitutional cases. Many trial judges are capable of undertaking this responsibility. But many, with the best will in the world, are not. Of course, this may be true of appellate judges too, although presumably more of them are chosen for their expected capacity to deal with important, challenging cases. More importantly regardless of initial qualifications, appellate judges are more likely to develop an expertise relevant for exercising such functions, because there are relatively few of them, so that each one is much more likely to come across complex constitutional cases than a trial judge, of whom there are relatively many, so that each one may face significant constitutional cases only once or twice in his or her career. Furthermore, appellate judges do not sit alone. This means that the odds that an individual judge’s error will be caught and corrected before the court’s decision is issued are higher. Shifting power in constitutional cases from appellate to trial courts may thus lead to more errors in the dispositions of such cases.

It will also make constitutional adjudication less accountable. Trial decisions, even in important constitutional cases, attract less attention than appellate ones, especially those of the Supreme Court. Even when such decisions do attract attention from the media and academic commentators, the focus is not likely to be on the assessment of the evidence. Yet under the Supreme Court’s approach in Bedford, by the time a case comes up for appeal, and eventually reaches the highest ― and most visible ― court, it may well already be effectively decided. The Supreme Court can then avoid responsibility for controversial decisions, saying that “the trial judge made us do it.” (Indeed, I wonder whether this was not the real attraction of this approach to the Supreme Court in deciding Bedford.) Call it judicial leading from behind.

The final problem with this approach that is worth mentioning is that it risks making Charter litigation the province of sophisticated interest groups, such as those that intervened in Bedford, and out of reach of ordinary litigants and their equally ordinary lawyers, such (mostly) as the people behind some of the early ground-breaking Charter cases. Assembling a record for winning a Charter case on the facts ― on legislative facts ― is long and difficult. It is also, needless to say, expensive. As Sonia Lawrence pithily puts it in her post on Bedford (which I highly recommend)

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.

The government, as the best funded and most powerful interest group of them all, is more likely to have the resources to put together a solid record than those who challenge it. The road is certain to be long, but it may well lead to nowhere.

There is a sad irony in all of this. One wonders whether, indeed one suspects that, the Supreme Court prefers to rely heavily on fact-finding ― preferably on fact-finding by others ― in order to avoid responsibility for controversial decisions, or at least, to put the point less harshly, in order to make such decisions appear more inevitable and hence less questionable and more legitimate. This strategy may succeed in the short term. The reasoning from facts in Bedford seems very solid; although it has not escaped criticism (not necessarily enlightened, or even having anything to do with the actual decision), it has not attracted the firestorm which would have been inevitable if it had been a broader ruling based on the right to liberty, the freedom to do what one pleases with one’s body. Yet if my worries about errors, lack of accountability, and access to justice are justified, in the long run, the legitimacy of Charter-based judicial review may well be undermined. The problem with leading from behind is that one has trouble seeing ahead. The Supreme Court is in serious danger of veering off course.

Faith and Acts

Is it permissible for an undercover police officer to pose as a religious adviser to induce a suspect to disclose information about a crime the officer is investigating? Not always, but sometimes it is, says the Court of Appeal for Ontario in a decision released last week, R. v. Welsh, 2013 ONCA 190.

In that case, the investigation of a brutal murder involved a police officer posing as an “Obeahman,” the practitioner of Obeah, a system of beliefs that “centres on mysticism and spiritualism and is commonly practiced throughout the Caribbean and by those of Caribbean descent, including many Caribbean Canadians. It … defines the characteristics of the supernatural world and its relationship to humankind” (par. 26). In particular, “Obeah is used as a bridge between the natural and the spirit worlds, and part of the work of an Obeah practitioner is to try to protect supplicants who believe that an evil spirit is targeting them” (par. 27).

Using props, ploys, and subterfuge, the pretended Obeahman managed to persuade the suspects of his investigation that he would be able to protect them from problems with the police and the criminal justice system, which the murder victim’s spirit would otherwise create. But, he told them, in order to do this he needed to know how that spirit came to be―and so incited them to disclose information about the murder which eventually proved significant in securing their convictions.

Before the trial, the accused moved to suppress the false Obeahman’s testimony. They argued that they freedom of religion and equality rights had been infringed, that the statements they made to the man who they believed was an Obeahman were privileged at common law, and that their collection was a “dirty trick” which, if permitted, would bring the administration of justice into disrepute. The trial judge rejected these submissions, and they were among the grounds of appeal (the only one which I discuss here).

On the issue of the violation of freedom of religion, after some discussion of whether the appellants were actually sincere believers in Obeah (one of them was not, but another was), the Court held that the conduct of the police did not amount to an infringement of religious liberty. Although the undercover officer encouraged the appellants in their beliefs, he did not compel them (nor did he have any power to do so). Nor did he in any way prevent them from acting on any religious beliefs. Perhaps most importantly,

there is no evidence that either appellant communicated with [the pretended Obeahman] Leon to satisfy or fulfill some spiritual need or purpose. This situation is distinguishable from the hypothetical of a police officer posing as a priest and pretending to take a religiously motivated confession from a suspect. In that case, the communication would be religiously motivated and made to satisfy a spiritual need or purpose. … [T]he lack of a formal practice of confession in Obeah is not determinative … The focus is not on formal distinctions of that kind but rather on whether a religious purpose motivates the communication. The situation of a suspect who thinks he is speaking to a religious or spiritual figure for spiritual counselling or guidance is very different from that of a suspect who seeks assistance in thwarting the authorities. (Par. 70)

The Court made short work of the appellants’ equality argument, holding that they had been targeted because they were suspects in a criminal investigation, not because of their race or unusual religious beliefs. Although there was evidence that some of the police officers involved in the investigation did not regard Obeah as a genuine religion, their views were not material, since the trial judge’s decision was not founded on them (and indeed rejected them).

The Court also rejected the appellants’ claim that their communications with the Obeahman attracted common law privilege (in the way a confession to a priest would). Whether or not they had an expectation that these communications would remain confidential, the crucial fact is that their purpose was not to seek pastoral guidance but to obtain help in evading justice. Such communications deserve no protection from society and are not privileged.

Finally, the Court denied that the conduct of the police fell into the category of “dirty tricks” that bring the administration of justice into disrepute. Justice Lamer (as he then was), who first articulated this idea in a concurring opinion in Rothman v. R., [1981] 1 S.C.R. 640, suggested “a police officer pretend[ing] to be a lock-up chaplain and hear[ing] a suspect’s confession is conduct that shocks the community,” (p. 697) making the resulting evidence inadmissible. But despite the superficial similarity, this case is not identical to that scenario. Once again, the purpose of the appellants’ interaction with the alleged Obeahman is crucial:

 Unlike the priest-penitent example, and quite apart from any distinction drawn on formal differences between the confessional and merely confiding in a religious adviser, the appellants did not communicate with [the Obeahman] to fulfill a religious purpose or spiritual need. They were induced to make incriminating statements to [the Obeahman] in the hope that he would use his powers to thwart the police and the justice system and to allow them to escape prosecution for a serious crime.

I think this is a sensible decision. Religious freedom always worries not only its detractors but even its defenders because it seems to involve an idea that those who claim it as justification for their actions seek to become “a law unto themselves,” and not be bound by the law of the state, which applies to their fellow citizens. These fears are not infrequently overblown, but here, the appellants quite clearly sought to invoke their faith to shield them from the consequences of perfectly secular, and utterly reprehensible, acts. No theory of religious freedom will let a believer get away with murder.

The Forms and Limits of Persuasion

There was a very interesting piece by Maggie Koerth-Baker yesterday in New York Times magazine, about the ways in which we make up and change our minds. The immediate context to which it is directed is U.S. presidential campaign, in which both contenders (though especially Mitt Romney) have had some notorious “flip-flops.” But of course the issues it explores are relevant beyond the field of politics;  for example, they are of great importance to the law.

The law, as Ronald Dworkin, Jeremy Waldron, and others like to remind us is (in prof. Waldron’s words) “an argumentative practice.” A huge part of it involves two sides arguing their cases in front of an adjudicator or a group of adjudicators, who must then make up their minds about the decision. The parties are required to present evidence in support of their arguments, and the adjudicators’ decision is expected to be responsive to that evidence. What Lon Fuller might have called the forms and limits of persuasion matter enormously to lawyers and all those interested in the law’s operation.

But is persuasion just a pipe dream? In the final sentence of the article, Jonathan Haidt, a professor of psychology at NYU’s Stern School of Business says that “the truth is that our minds just aren’t set up to be changed by mere evidence and argument presented by a ‘stranger.’” That doesn’t bode well for the enterprise of law. Fortunately, what the article says before reaching this grim conclusion suggests that it is, in fact, misleading.

For one thing, the tendency to ignore evidence and argument manifests itself more or less strongly depending on context. “In some cases,” says Ms Koerth-Baker, “if we want to think of ourselves as thoughtful and open-minded — we can adopt identities that actually encourage flip-flopping” – or, less contemptuously, changing our minds in response to facts and arguments. “This is why juries function,” – and judges, too, of course – “and it’s what places pressure on scientists to form opinions based on reliable data.” The ethos of a dispassionate, careful decision-maker, one who must consider and respond to facts and arguments and, if necessary, change one’s mind, can apparently go to great lengths to overcome our natural inclination to decide on the basis of emotions and partiality to our own kind.

For another, knowing that one will be giving reasons for a decision changes the way one approaches making it. “Simply having to articulate why you believe what you do can also end up changing your attitude.” Not always in entirely desirable ways. People who know they must explain their decisions will sometimes take the decision that is easiest to explain, even though they might feel it is not quite right substantively. We might guard against the danger But, suggests a psychologist from the University of Virginia, ” if you have to explain your preferences, you’re likely to adopt an attitude that makes sense to your interlocutor, even if it conflicts with your emotions.”

The way our justice system is set up helps ensure that our judges are open to persuasion by evidence and arguments. Judges believe in and are committed to the impartial decision-maker’s ethos, which suggests that they are likely to do a decent job living up to it. In order to help them do so, and also in order to verify whether they do, there is a strong expectation, increasingly taking the form of a legal rule, that judges will give reasons for their decisions. These reasons typically summarize the parties’ main arguments, and respond to them. This forces judges “to adopt an attitude that makes sense to” the parties, as well as to consider the parties’ views. This, turn, is one of the ways in which law protects human dignity, as Jeremy Waldron points out. (Perhaps, in this limited sense, reason-giving can in fact exercise a  “pull towards goodness,” on judicial decisions, a possibility about which I have otherwise expressed skepticism, assuming a more substantive meaning of “goodness.”) And perhaps our judicial selection mechanism, which means that judges are recruited from the ranks of experienced litigators and legal academics, two professions which prize and help develop one’s ability to articulate one’s thinking, helps limit the risk that judges will give insincere but easy-to-state reasons for their decisions.

Despite my usual gloomy disposition (including a lack of faith in judges, at least when it comes to their ability to develop legal rules, as for example here), I am inclined to conclude on an optimistic note today. Our courts are organized in ways that counteract human beings’ poor decision-making skills, which psychologists are now describing in ever more depressing detail. And it is noteworthy that this is the result of a gradual development of the court system, rather than of its deliberate organization on scientific lines. (Those who hear an echo of Hayek here are right.) Our individual decision-making might be bad, but the accumulated intuition of generations is surprisingly good.

Googling Justice

Law review articles don’t make newspapers very often. But they do sometimes, as I noted in a post discussing the use of a certain four-letter word by Supreme Courts in the U.S. and Canada. Another example is a very interesting forthcoming paper by Allison Orr Larsen, of the William & Mary School of Law, called “Confronting Supreme Court Fact Finding,” which is the subject of a recent Washington Post story.

What seems to have piqued the Post‘s interest was the reference, in a fiery dissent by Justice Scalia in Arizona v. United States, to an newspaper article published after the oral argument in that case. The article was obviously not referred to by any of the submissions to the court. Justice Scalia, or one of his clerks, found it himself. Never mind the political controversy around Justice Scalia’s comments; “let’s … focus on a different lesson,” says the Post. “[U.S.] Supreme Court justices Google just like the rest of us.”

Indeed they do, writes prof. Larsen, and very frequently. She found more than 100 examples of judicial citations of sources not referred in the record in the opinions of the U.S. Supreme Court issued in the last 15 years; and such citations might be especially frequent in high-profile cases. While the rules of evidence require judges to keep to the evidence put to them by the parties, and appellate courts to the facts found at trial, for the “adjudicative facts” of a case – who did what, where, when, to whom, with what intention, etc. – these limits do not apply to “legislative facts” – general facts about the world or, more specifically, the social (and scientific) context in which legal rules operate.

As prof. Larsen notes, “[i]ndependent judicial research of legislative facts is certainly not a new phenomenon” (6). But new technologies are game-changers, because they make it so much easier. “Social science studies, raw statistics, and other data are all just a Google search away. If the Justices want more empirical support for a factual dimension of their argument, they can find it easily and without the help of anyone outside of the Supreme Court building” (6). If the parties (and interveners) to a case did not provide them with as much contextual information as they would have liked, judges used to have to rely on their own knowledge of the world, or guess, in order to figure out the context in which the rules they applied operated, and present their conclusion as, essentially, bald assertions. No longer. Now they can easily find what someone else has written on whatever topic interests them, and provide that person’s work as a source – an authority – for their assertions.

Prof. Larsen argues that this raises several problems, which the law at present fails to address. One is the risk of mistake. What if the information judges find is wrong or unreliable? Normally, we trust that the adversarial process will allow the parties to point out mistakes in the evidence submitted by their opponents. But if the judges engage in “in-house” fact-finding, there is no one to call them on the errors they might – and surely will – make. What makes the problem even worse is that human psychology and, possibly, technology, can conspire to make the results of judicial investigations biased. It is well-known that we tend to look (harder) for information that supports our hunches (rather) than for that which disproves it. But now, in addition, it is possible for search engine algorithms to supply us with information that suits our (likely) biases as inferred from our previous online activity. There is, apparently, debate over whether Google actually does this, but at least the possibility is there and ought to be worrying. Last but not least, in addition to the problems of error and bias, judicial reliance on “in-house” research is unfair to the parties, who have no notice of what the judges are doing and no opportunity to challenge their findings or even to address their concerns.

In fairness, it’s not as if the old common sense, logic, and bald assertion way of “finding” legislative facts were problem-free. Perhaps, at some point in the past, their experience as litigators was sufficient to teach future judges all they needed to know about the world (though that’s very doubtful). It surely isn’t anymore (as I wrote, for example, here). And bald assertions of judicial common sense are hardly less unfair to the parties, or less affected by bias (class bias for example), than their autonomous research. I don’t know if it is possible to establish with any sort of confidence whether the problems the new resources at the judges’ disposal are creating are worse than those they are displacing. But perhaps it is worth trying.

Another thing I don’t know is whether these problems might be less acute in Canada than they are in the United States. I don’t have any hard numbers, but my impression is that our Supreme Court might cite fewer problematic sources for its legislative-fact-finding. It often relies on the governmental studies, which I suppose are easily available to the parties and surely are (or really, really ought to be) part of the record. I may be wrong about this though. That would be a feasible study, and an interesting one to undertake, but for now, I do not have the time to do so. I would love to hear from those in the know though, former Supreme Court clerks for example.