The Costs of Charter Litigation

Legislative Fact Evidence – Some Thoughts on this Critical Variable Footnote 30

The Supreme Court of Canada may not have provided much guidance as to when and how legislative fact evidence should be introduced, but it has provided a clear definition of what legislative fact evidence entails:

It is necessary to draw a distinction at the outset between two categories of facts in constitutional litigation: "adjudicative facts" and "legislative facts". These terms derive from Davis, Administrative Law Treatise (1958), vol. 2, para. 15.03, p. 353. (See also Morgan, "Proof of Facts in Charter Litigation", in Sharpe, ed., Charter Litigation (1987).) Adjudicative facts are those that concern the immediate parties: in Davis's words, "who did what, where, when, how and with what motive or intent ...." Such facts are specific, and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements…. Footnote 31

Recent practice in constitutional adjudication under s. 7 suggests that the litigants believe a meritorious challenge must be accompanied by an extensive sampling of legislative fact evidence. As Da Silva has noted:

Recent constitutional jurisprudence has seen an increasing role for expert evidence and social science research in the determination of contentious cases. Trial level constitutional arguments in Bedford v Canada (concerning the constitutionality of criminal prohibitions against prostitution­ related activities), Canada (Attorney General) v PHS Community Services Society (concerning constitutional exemptions from criminal drug trafficking offences for a safe injection site), and Carter v Canada (Attorney General) (concerning the constitutionality of criminal prohibitions on physician-assisted dying) relied heavily on expert submissions and social science data; in Insite, trial level weighing of this information provided a factual basis for the Supreme Court of Canada (SCC)'s ultimate determination. Contemporaneous with these cases was the first use of British Columbia's trial level constitutional reference power: Reference re: Section 293 of the Criminal Code of Canada, also known as The Polygamy Reference. Footnote 32

This movement towards extensive application records replete with a variety of expert evidence was propelled by a clear admonishment in the earlier Charter-era from the Supreme Court of Canada to the effect that constitutional challenges should not be brought in a factual vacuum. The Supreme Court of Canada clearly expressed a preference for challenges to be accompanied by legislative facts of a contextual nature. The Court stated in 1989:

Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. ... Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel. Footnote 33

The Court may have been expressing a disdain for constitutional arguments which proceed solely on the basis of the rhetoric of "enthusiastic counsel"; however, one has to wonder whether the Court was inviting counsel to convert a court hearing into a commission of inquiry. The recent flurry of s. 7 challenges were not simply accompanied by a modest selection of contextual studies and research, but rather were cases in which dozens of expert and experiential witnesses testified, and countless studies were tendered without the requirement of calling the authors of the studies as witnesses. Footnote 34

For example, in the recent polygamy reference, Bauman C.J. noted the importance of a full evidentiary record in Charter litigation and stated "I have taken a liberal approach to admissibility in this proceeding, admitting all the evidence tendered." Footnote 35 Thus Bauman C.J.’s disposition regarding the constitutionality of s. 293 of the Criminal Code rested "on the most comprehensive judicial record on the subject ever produced". Footnote 36 Bauman C.J. summarized the evidence as being comprised of over 90 affidavits and expert reports. Approximately 22 of the affiants and experts were examined who represented "a broad range of disciplines including anthropology, psychology, sociology, law, economics, family demography, history and theology." Footnote 37 Many lay witnesses also presented evidence of personal experiences within polygamous relationships. Footnote 38

The conversion of constitutional challenges into wide-ranging inquiries of social and political facts and values extends beyond the well-known controversies involving drug injection sites, polygamous relationships, assisted suicide and sex work. For example, in a recent s. 7 and s. 15 challenge to the BC Corrections Branch’s decision to cancel the Mother and Baby Program, which allowed inmates to remain with their babies after giving birth while they served their sentences, the Court heard and considered a wealth of contested evidence concerning child-rearing practices and the bond between mother and child. In finding the cancelled policy to be violative of rights, Ross J. summarized evidence from 10 expert witnesses Footnote 39 and 7 experiential witnesses Footnote 40 in addition to the two applicants. These witnesses included a nurse, a sociologist, a psychologist, a physician, a law professor, a professor of psychiatry, a clinical and forensic psychologist, a clinical social worker, a correctional supervisor and some of the mothers in the program. The director of Research, Planning and Offender Programming at Corrections also provided a report regarding the "characteristics of the population of sentenced women in the province, criminogenic risk factors and factors relating to recidivism." Footnote 41

It may not always be necessary to call legislative fact evidence. Sometimes the proof of a constitutionally adverse effect of law can be a matter of reasoned argument and simple common sense. Scientific and empirical inquiry will usually play a critical role, but, in some circumstances, common sense should come into play if science has yet to provide a conclusive resolution. For example, in RJR-McDonald Footnote 42, the Court needed to reach a factual finding as to whether advertising increased consumption of a product (in this case, cigarettes). The scientific studies presented to the Court were not resolute or determinative of the issue and the Court relied upon the "powerful common sense observation" that companies would not spend millions on advertising if they did not believe that it would increase consumption of their products. Footnote 43 The Court recognized that the exercise of proving the effects of law cannot be seen as a pure scientific inquiry as "predictions respecting the ramifications of legal rules upon the social and economic order are not matters of precise measurement, and are often ‘the product of a mix of conjecture, fragmentary knowledge, general experience and knowledge of the needs, aspirations and resources of society, and other components.’" Footnote 44

In addition, legislative fact evidence is often available within government reports, and on a consistent and routine basis, the litigants and the courts have relied upon government reports without supporting witnesses for the purpose of elucidating legislative objectives and to provide evidence of the effects of legislation. Even a cursory review of Supreme Court jurisprudence in the Charter era reveals extensive reliance on government reports to establish a wide array of legislative facts. Footnote 45 Government reports may not always be "generally accepted" and beyond debate; however, evidence-based studies of law are few and far between, and a focused inquiry by lawmakers and their agents into the effects of law may be only evidence readily available to supplement common sense and reasonable hypotheticals.

If relevant government reports or government-commissioned studies do not exist, simple reliance upon common sense and reasonable hypotheticals may not be sufficiently powerful to provide the court with the impetus to invalidate a challenged law. In Bedford, the factual questions underlying the constitutional argument could have been answered with common sense and reasonable hypothetical argument. Although the policy issues surrounding many aspects of the sex trade are controversial, divisive and the subject matter of endless debate, it must be remembered that the factual issue raised in the case was far more simple: can safety be enhanced by moving indoors, recruiting assistance and communicating with clients? It seems that this question could be answered easily based upon common sense; nonetheless, it is hard to imagine the Court invalidating the sex trade provisions without the accompanying record of empirical study, experiential opinion and government-commissioned reports, which all spoke to the increased risk of violence faced by sex workers operating in the current legal regime.

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