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.