Lies, Damned Lies, and Judicial Review

As the federal government considers its response to the Supreme Court’s ruling in Canada (Attorney General) v. Bedford, 2013 SCC 72, which invalidated the prostitution-related provisions of the Criminal Code, one can be forgiven for wondering whether its response will be guided by facts and research, or by ideology. Unfortunately, as a depressing but important guest post by Maggie McNeill on the Washington Post’s “The Watch” blog (run by Radley Balko, a civil libertarian) shows, when it comes to sex work, facts and ideology are often inextricably linked.

Ms. McNeill writes that

many of those who represent themselves as sex work researchers don’t even try to get good data. They simply present their opinions as fact, occasionally bolstered by pseudo-studies designed to produce pre-determined results. Well-known and easily-contacted sex workers are rarely consulted. There’s no peer review. And when sex workers are consulted at all, they’re recruited from jails and substance abuse programs, resulting in a sample skewed heavily toward the desperate, the disadvantaged and the marginalized.

Much of what passes for research on sex work, says Ms. McNeill, is produced not by impartial researchers, but by interest groups campaigning for the prohibition of any and all forms of prostitution, who often try to present them as invariably involving sex trafficking and exploitation of children, knowing that this is the most effective way to produce the response they desire from the public, the media, and legislators. Ms. McNeill also points out that the very fact that prostitution is criminalized in most of the world makes reliable statistics hard to come by (although even for countries where much sex work is legal, biased “researchers” choose to focus on its illegal side). Yet the media, which shape the perceptions of the issue among the general public and legislators, swallows dubious or outright distorted figures whole, without questioning the methodologies by which they are arrived at. (The Economist’s recent article based on a “study” which, as Ms. McNeill points out, involved fewer than 40 sex workers, drawn from one small segment of the profession, is a sad example of this trend, from a supposedly intellectual publication.)

The reason I am writing about this, apart from the obvious importance for all of us as citizens of being wise to what is going on, is that the litigation which will almost inevitably follow Parliament’s response to Bedford (especially if, as rumour has it, this response will include a criminalization of the purchase of sex) will heavily rely on studies of and statistics about sex work. What is more, under the Supreme Court’s holding, in Bedford, that the findings of “legislative fact” by a trial judge are entitled to full deference appellate courts, the way these studies and statistics will be handled at first instance is likely to determine the outcome of the new constitutional challenge, just as they determined that of Bedford itself.

As I wrote in my comment on what Bedford meant for the future of Charter litigation, this is a worrying perspective:

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.

The federal government will go into any new litigation armed with a record made up of studies and statistics about sex work ― in all likelihood, studies and statistics of the sort Ms. McNeill describes. A lot will depend on whether the lawyers who will challenge it will be up to the task of exposing the flaws of such a record. But, ultimately, the outcome of the case is likely to depend on the ability of just one trial judge to understand and critically assess this evidence. With all due respect to trial judges, I find this disquieting.

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