It might have looked like an essentially technical matter, but the Supreme Court’s recent decision in R. v. Tatton, 2015 SCC 33 turns out to be full of interesting things to discuss. I have already written about what it might suggest about the Court’s views on mandatory minimum sentences, and what it tells us about the respective roles of the courts and Parliament in law reform. I come back to it again to follow up on Lisa Silver’s very interesting post over at Ideablawg about the lack of scientific foundations beneath Justice Moldaver’s opinion for a unanimous court.
The narrow question the Court faced in Tatton was whether intoxication can be a defence to a charge of arson ― on the theory that an intoxicated person who puts something (in this case, the house in which he was living, but which belonged to someone else) on fire lacks the requisite “mental element” for the offence. The broader question on which the Court tried to provide guidance was how to distinguish offences for which intoxication can be invoked as an excuse, and those for which it cannot, somewhat confusingly known, respectively, “specific intent” and “general intent” offences. As Ms. Silver notes,
Liberally sprinkled throughout the decision is reference to the inextricable connection between intoxication and crime. … Despite this heavy reliance on what appears to be scientific truths, at no time did the Court refer to or support the position with scientific study or research.
While a precedent the Court considered did rely on scientific literature, it was, Ms. Silver points out “was rendered in 1994, twenty-one years ago, with the studies coming from the mid to late 1980s.” Ms. Silver discusses ― and links to ― a considerable number of studies carried out since then. Her takeaway from them is that
that the issue is has not been empirically determined and the relationship between alcohol, mental processes, and crime is highly complicated and variable.
Justice Moldaver’s opinion, by contrast, makes things look very simple. Ms. Silver concludes that
Mr. Justice Moldaver relied upon the court’s perception of the “science” … in reiterating a long held position that intoxication is not a defence to a general intent offence without referencing any recent empirical studies … By proceeding on this basis, the Court missed the opportunity to provide some rational basis for the general/specific distinction. Instead, the Court has simply perpetuated a legal fiction.
The Court’s “empirical turn,” most recently exemplified by its decision in R. v. Smith, 2015 SCC 34, which relied on research regarding the therapeutic effects of various forms of medical marijuana, has not exactly followed a consistent trajectory. There have been missed opportunities such Tatton along the way, or R. v. Fearon, 2014 SCC 77,  3 S.C.R. 621, where Justice Cromwell claimed that armed robberies had “become depressingly routine,” despite crime statistics ― to which he did not refer ― suggesting that their incidence was falling. In the rest of this post, I would like to venture some observations on the context in which these missed opportunities and outright misstatements occur.
For instance, it is important to note that the Court is not the only party to ignore the science relevant to its cases. In Tatton, only one of the three facta (that of the Ontario Crown) submitted to the court referred to scientific studies ― and only as a additional support for the claim that “[i]t is well known that many people do foolish and dangerous things when drinking.”  The “common sense observation” is what matters in that passage; the scientific evidence is almost an afterthought. The accused and Criminal Lawyers’ Association of Ontario, which intervened to support him, did not manage even that. They were content with citing cases and, at most, reports of law-reform commissions. As Richard Posner says in his Reflections on Judging, the bench and the bar share a lack of familiarity with the sciences, whether social or natural and, worse, a lack of curiosity that results in an unwillingness to investigate the backgrounds against which legal rules operate, to go beyond the “common sense” assumptions which may bear little, if any, resemblance to the scientific truth.
At the same time, it is not enough to blame the lawyers’ narrow-mindedness. The “empirical turn” suggests, after all, that some of them can overcome it at least some of the time. Why not in Tatton though? The nature of the case, I suspect, is an important factor here. In commenting on Canada (Attorney General) v. Bedford, 2013 SCC 72,  3 S.C.R. 1101, Sonia Lawrence observed, vividly, that the Charter challenges emblematic of the “empirical turn” “aren’t cases that walk into your office one day. They are cases put together piece by painstaking piece.” Tatton, by contrast, was a case that “walked in the office” of small-town law firm ― perhaps literally. Mr. Tatton was facing a criminal charge. He probably had little money. It’s not quite fair to expect that his lawyers, with his and their limited time resources, would have done as thorough a job of mounting an empirical case as an interest group pursuing a constitutional challenge on its own terms. (Still, not being able to mount a perfect empirical case is no excuse for not even trying to inject at least some scientific background into one’s argument.) In my own take on Bedford, I wrote that “[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.” It is perhaps not just coincidental that the only references, however minimal, to scientific literature in this litigation appeared in the Crown’s factum.
Now given the limitations on the lawyers’ willingness and ability to provide judges with the scientific background relevant to the cases they argue, the question arises of whether judges should just find it themselves. Ms. Silver, I suppose, thinks that they should. Judge Posner certainly does, and he actively practices what he preaches. But, in the United States at least, he has a considerable number of critics, who warn that judges who turn to Google to find background information missing from the record built up by the parties are not only acting unfairly by not giving parties notice of their concerns, but also risk committing serious mistakes. (I wrote about a very interesting article by Allison Orr Larsen exploring these issues here.) In Reflections on Judging, Judge Posner retorts that “no one should be so naïve as to believe that the determination of facts by the familiar adversary process at trial is proof against error.” (140) That’s true so far as it goes, but tu quoque isn’t always a very compelling argument. Why should we, one might ask, compound the errors of the courtroom with further errors made in the judge’s chambers? Ultimately, Judge Posner acknowledges these concerns and admits that
[t]here is a danger that judicial recourse to secondary literature, and to the Internet more broadly, will often be rhetorical rather than substantive. I have no solution to this problem—other than to suggest trying through judicial training and other means to increase the intellectual sophistication of the judiciary. (142)
That, as he points out elsewhere in that book, is no easy task.
Indeed, there are no easy solutions to the problems I have tried to canvass in this post. Judicial decision-making that doesn’t try to address empirical evidence or scientific research risks going astray, but so do attempts to take stock of such information. There are longstanding prejudices of all the branches of the legal profession ― including, I’m afraid, the academic branch ― as well as resource constraints to contend with. If Judge Posner has no solution for these problems, I will certainly not pretend to have one either. But perhaps if more of us start thinking about them, we will be able to come up with something.