Friends Like These

In my comment on the Supreme Court’s decision striking down the Criminal Code’s provisions on prostitution,  Canada (Attorney General) v. Bedford, 2013 SCC 72, I expressed concern about the Court’s reliance on “legislative facts” ― that is, the social context in which the impugned legislation operates ― to resolve the case, and especially its holding that a trial judge’s findings of legislative fact are entitled to as much deference as findings of “adjudicative facts” ― that is the more mundane facts about the events that give rise to a dispute. An American lawyer, Yaakov Roth, expresses somewhat similar worries in the National Post. Yet he misunderstands or misrepresents the law, and his argument is so tendentious that it does not make the case at all.

Mr. Roth is angry at the Supreme Court’s decisions in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 (usually known as the Insite decision) as well as in Bedford. As he puts it, “using illegal drugs and publicly soliciting prostitution are, to put it mildly, not activities that come to mind when one thinks of fundamental constitutional rights.” And the Court’s fact-finding process is to blame for its bizarre holdings. Requiring appellate courts to defer to the conclusions reached by a trial judge after hearing from “purported experts” “means that a single, anonymous trial judge is authorized to impose his social worldview on the entire country.” Actually, the social facts involved in Charter disputes aren’t facts at all. The costs and benefits of safe injection facilities, the dangers of prostitution within the existing legal framework, or the voluntariness of a choice to break drug or prostitution laws “are social theories, policy conclusions, value judgments and ideological preferences.” Yet policy, values, and ideology are the remit of Parliament, not courts:

turning every social policy issue into a disputed “fact” to be resolved by a single judge after hearing testimony from academics is nothing but a transparent effort to substitute judges’ policy views for those of Parliament.

Unfortunately, whether deliberately or not, Mr. Roth misrepresents both Insite and Bedford, which were actually more modest decision than he makes them out to be. In Insite, the Supreme Court did not hold that there was a constitutional right to use illegal drugs, simply because the question did not arise. The general criminalization of drugs was not at issue. The statute made it possible for the government to exempt a facility such as Insite from its application, however, and it was the decision to withdraw the exemption that was challenged. Similarly, in Bedford, the Supreme Court was adjudicating against the background of a decision by Parliament not to criminalize prostitution itself. The Court held that Parliament made a legal activity more dangerous than it had to be, not that there was a fundamental right to engage in it in the first place. Besides, the Supreme Court’s decision did not rest on the “fact” that people had no choice but to engage in prostitution; on the contrary, it held that voluntariness was irrelevant (again, because prostitution was not illegal to begin with).

As or more importantly, Mr. Roth’s argument is undermined by his sweeping dismissal of all social science evidence and expertise, which is as broad as it is uncalled for. Social science (as well as physical and life sciences!) is susceptible to doubt, and its conclusions are subject to revision. It is, I think, a fair argument (whether we accept it or not) that there is a danger in making judicial decisions on such a shaky foundation. It is also a fair argument (and I have made it myself) that courts are not well equipped to deal with social science evidence. But it is quite wrong to claim that social science is nothing but value judgment and ideology. It is, on the contrary, pure ideology to reject out of hand the best available knowledge about how the world and human society works. To take an example quite unrelated to the constitutional cases that so annoy Mr. Roth, anti-trust law has made great progress in the last half-century by paying attention to economics ― a social science. It is one thing to say that courts should be aware of their limitations when assessing social science evidence, and should structure their procedures (such as standards of appellate review) with these limitations in mind. It is quite another to say that they should simply blind themselves to such evidence. 

Mr. Roth is right to point out that the way in which courts treat social science evidence affects the balance of power between the judiciary and the other branches of government. It also affects the balance of power among the courts. The Supreme Court’s chosen approach gives more power to trial at the expense of appellate courts, which I have argued is a worrying change. However, eschewing fact-intensive analysis and deciding more cases on the basis of legal principles rather than “legislative facts” ― for example, deciding Bedford on the basis of a general right to liberty ― would probably increase rather reduce judicial power. It would also produce, from the likes of Mr. Roth, howls about the imposition of the judges’ worldview on citizens. Indeed, I suspect that it is at least in part to avoid this sort of reactions that the Supreme Court has taken the fact-intensive approach to controversial cases such as Bedford.

I still think that this is a risky choice (in the long run anyway, because I have little quarrel with Bedford decision itself, or with the Insite one for that matter). However, in trying to work out the least-bad approach to judicial review, we have to appreciate the difficulty of the task, and the need for nuance. Mr. Roth’s argument is devoid of such an appreciation. With friends like these… we won’t go far.