Adducing Social Science Evidence in Constitutional Cases.

• Author: Perryman, Benjamin

Introduction

1. Opening the Door to Social Science Evidence

   1. Brown v Board of Education as a Catalyst for Change and Concern

   2. Social Science Evidence Comes to Canada

2. Effective Use of Social Science Evidence

   1. The Importance of Epistemic Communities for Developing the Record

   2. Who Should Adduce Relevant Social Science Evidence, and When

   3. What is the Applicable Test for Assessing Reliability of Social Science Evidence

   4. Judicial Receptiveness to Social Science Evidence

3. Social Science Evidence in Comparative Context

   1. Assessing the Reasonableness of Economic and Social Rights Program Delivery: Treatment

      Action Campaign and Mazibuko

   2. Constraining Exercises of Discretion with Social Science Evidence: Insite

   3. Failing to Justify Policy with Social Science Evidence: Parents Involved in Community Schools

      Conclusion

   1. Lesson #1: Take a Group Approach to Constitutional Litigation that Brings Together Affected Persons, Community Organizations, Academics, and Other Experts

   2. Lesson #2: Adduce Evidence at the Earliest Stage Possible with the Most Reliable Expert(s) Available

   3. Lesson #3: Evaluate the Reliability of Evidence to Ensure It Will Withstand the Applicable

      Test for Admission and Be Given Weight

   4. Lesson #4: Adjust the Theory of a Case Where Social Science Evidence Is Weak, Contested, or Too Complex

   5. Lesson #5: Prepare for a Future Where Social Science Evidence Is an Expected Part of Constitutional Litigation

      Introduction

      The road is not smooth for the use of social science evidence in the courts.

      --Justice John M Wisdom, United States Court of Appeals for the Fifth Circuit (1) Social science evidence is increasingly part of Canadian Charter of Rights and Freedoms (2) litigation in Canada. Armed with litigation records that include extensive social science evidence, historically disadvantaged litigants have forced seismic policy change in areas such as safe injection sites, sex work, and assisted dying. These "have-not" litigants--drug users, sex workers, and the terminally ill, amongst others, with limited litigation experience and even fewer economic resources--have effectively used social science evidence to win their cases. (3)

      Much has been written on this phenomenon and the benefits, burdens, and challenges it poses for the judicial system in Canada. (4) What has been less studied are the dynamics, strategies, and best practices associated with adducing such evidence. This paper addresses that under-studied area, using a qualitative, comparative perspective.

      Importantly, the paper does not attempt to make the causal claim that social science evidence is necessary for, or correlated with, success in constitutional cases. The systematic, non-probabilistic selection of landmark case studies for this paper does not permit such claims or allow for generalization of what impact social science evidence will have in a prospective case. But that is also not the objective of this paper.

      Instead, this paper asks: are there lessons that can be learned from landmark constitutional cases where significant social science evidentiary records were presented by one or both parties? The main claim of this paper is that there are clear best practices, emerging in Canada and elsewhere, for how to effectively adduce social science evidence in constitutional cases. By qualitatively studying successful and unsuccessful cases, it is possible to unpack some of the dynamics and strategies at play and make recommendations for how to make the road smoother for using social science evidence in constitutional cases. This is timely given the shifting approach to social science evidence in Canada over the past two decades.

      The Canadian experience with social science evidence mirrors, to some extent, that of other jurisdictions: judicial reference to facts derived from such evidence has transitioned from distrust or hostility (5) to something that is "firmly established" to the point of being unremarkable. (6) At the same time, courts are increasingly guarded against "junk science" and are demanding that expert evidence be rigorous and reliable, especially when it goes to an issue that is dispositive of a case. (7)

      As courts have become more open to social science evidence, the inclusion of such evidence in constitutional cases has proliferated. In less than two decades, we have moved from a constitutional jurisprudence that could find serious psychological harm on the basis of a brief affidavit of the applicant, (8) to a jurisprudence that frequently relies on, if not requires, massive social science records. (9) Like other jurisdictions, such as Germany, that have included social science evidence as part of constitutional litigation for quite some time, the presence of social science evidence in constitutional litigation records and decision making is becoming the "new normal" in Canada.

      The Supreme Court of Canada entrenched this new normal in two important ways in Canada (Attorney General) v Bedford. (10) First, the Court held stare decisis does not necessarily apply where there has been a "change in the circumstances or evidence that fundamentally shifts the parameters of the debate". (11) A change in the circumstances includes, for example, shifts in shared social values such as the meaning of marriage. (12) A change in the evidence includes, for example, reference to public policy experience and research that was not available at the time of the previous decision. (13) Second, the Court held that the appropriate standard of review of such evidence was the deferential palpable and overriding error standard. (14) Together, these holdings encouraged litigants to include social science evidence in their records with the hope of demonstrating a fundamental change in the debate, and to do so at trial level. Recent examples abound of litigants seizing on the Court's guidance in Bedford and employing social science evidence in this manner. (15)

      By "social science evidence", I mean expert evidence that attempts to explicate, using quantitative or qualitative methods, the impact of law on human behaviour or experience and, conversely, the impact of human behaviour or experience on legally relevant principles or rules. (16) This is a functional definition that focuses more on what work the evidence is doing in a particular case and less on the disciplinary training of the researcher or the particular methods they used to produce the research. Social science evidence addresses the human or social dimension of law, not the biological, chemical and physical dimension of human existence.

      Facts derived from social science evidence can be case specific or more general in nature--a distinction that Kenneth Davis characterized as adjudicative versus legislative. (17) Other scholars have developed more nuanced categories, (18) while still others have attempted to place social science evidence on a fact and law continuum based on how the evidence is used in judicial decision making. (19)

      These attempts at categorization are not without significant problems, including definitional imprecision. (20)

      Whether because of these definitional concerns or not, in R v Spence, the Supreme Court of Canada collapsed a number of different categories of facts into a single social facts category. (21) At issue in Spence was judicial notice and whether certain categories of facts could be accepted without proof and without being subjected to cross-examination. The Court held that the relevant question was not how a fact was categorized, but instead whether its admission and role in legal reasoning was dispositive of the case. (22) The distinction between different categories of facts was further flattened in Bedford, where the Supreme Court of Canada explicitly stated there is only one standard of review for fact-finding regardless of whether the facts are adjudicative, legislative, or social? (2) However, collapsing the categories of facts and focusing on whether they are dispositive of an issue in the case does not necessarily make the use of social science evidence in constitutional litigation a simple task. The challenge with social science evidence is not how to apply a single palpable and overriding error standard of review to different types of facts. The challenge is that certain types of facts are far more complex than others, require specialized knowledge to assess for relevance and reliability, and can play drastically different substantive roles in cases that range from insignificant to dispositive.

      In order to effectively use social science evidence to address particular issues and win cases, litigants must marshal social science evidentiary records, adduce such evidence before decision makers, and have the evidence admitted as relevant and reliable for an issue in the case. This is not easy. The road can indeed be bumpy to effectively using social science evidence in constitutional cases.

      Part I begins by suggesting that the increased importance of social science evidence in Charter litigation has antecedents in American constitutional law. That experience opened the door to judicial reliance on social science evidence to resolve key constitutional issues in dispute, but it also raised questions about what to do with evidence that is subsequently cast in doubt. Part I also provides a quantitative analysis of judicial reference to social science evidence in Charter cases as well as qualitative commentary on the growing importance of this evidence in both early and more recent cases.

      The dynamics, strategies, and best practices associated with effectively using social science evidence are examined in Part II. This includes consideration of how to create social science evidentiary records, who to use as an expert and when to present their evidence in court, legal tests for admissibility, and challenges with encouraging judicial reliance on such evidence.

      Case studies of landmark constitutional cases from three jurisdictions (South...