The Empirical Turn

In a post on the National Magazine’s blog, Kerri Froc discusses (among other things) what she refers to as “the empirical turn in Charter jurisprudence” ― the  tendency of Courts to decide Charter cases on the basis of social science evidence instead of “expounding on the nature of human values embodied by rights.” Perhaps most recent Supreme Court decision exemplifying this trend is the one in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101, which invalidated the provisions of the Criminal Code relative to prostitution. I had some thoughts of own on this topic here, so it is interesting to compare notes.

If I understand her correctly, Ms. Froc worries that increased reliance on social science evidence, in tandem with a narrow and technical approach to the application of the Charter, may lead to “democratic deficits” in rights adjudication. In particular, these twin trends, and the corresponding judicial retreat from more “abstract forms of philosophic reasoning,” cause “Charter analyses to become more divorced from the actual realities represented in the case,” while leaving the courts with excessive discretion in their treatment of the evidence, which they can use to either enable or stifle rights claims. Although Ms. Froc questions whether a more philosophical approach to the Charter would produce “more consistent and democratic outcomes,” she seems to suggest that it would at least be preferable from a process standpoint.

My own doubts about the direction in which the “empirical turn” is leading us concern both process and outcomes. Starting with the latter, my worry is specifically that deferring to findings of social science-based “legislative facts” by trial judges, as Bedford requires appellate courts to do, will lead to more mistakes than either more principle-based judicial decision-making or even a fact-based adjudication that allowed plenary review of such findings of fact on appeal. This is in part because trial judges may lack the skills to engage with social science evidence, and in part because, since trial judges sit alone rather than in panels, mistakes that they will make in assessing such evidence will not be caught before they issue their decisions. Besides, the government, whose resources are much larger than those of any civil-society organization, will be at an advantage in the evidentiary food-fights required by the “empirical turn.” We not are noticing this yet, because the current government is incredibly evidence-averse, and often legislates without bother to collect any facts at all, but that may change with the bill it is preparing in response to the Bedford judgment. Furthermore, the requirement to put together voluminous and complex social-scientific records to support Charter claims can not only lead adjudication astray, but slow down and maybe even prevent the filing of meritorious Charter claims.  As Sonia Lawrence put it, “[i]t’s a long road to justice this way around, folks,” given the time it takes to put together such records (and the money necessary to do so).

As for my process-related concerns, they might, like Ms. Froc’s, also be described as having to do with democracy, at least in a broad sense. One such concern is with accountability. Shifting the weight of rights adjudication from principle-based reasoning by appellate courts to fact-finding at trial risks making it less visible, especially to the media which tend not to devote nearly as much attention to the decisions of trial courts as to those of the Supreme Court. As I wrote in the post linked to above,

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.

My second “democratic” concern with the “empirical” turn is that the costs and difficulty of assembling a trial record required by this approach will make Charter litigation the province of well-funded organizations and interest groups, leaving individuals without such support unable to pursue their claims.

The irony of it all is that the “empirical turn” in rights adjudication is probably motivated by judicial concerns over the “democratic deficit” of judicial decision-making in the realm of social policy and/or morality. As I wrote earlier, it seems likely enough 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.

Yet if Ms. Froc or I are right about the problems we see with the “empirical turn,” this strategy risks backfiring and making judicial review appear deeply problematic, perhaps even “undemocratic” ― to an even greater extent than it necessarily, and rightly, is. The point, as I argued here, is not that courts should ignore social science evidence altogether. In some cases, an “empirical turn” can be a useful contribution, perhaps even a correction, to Charter adjudication. But courts should be aware of its dangers, and should try to mitigate instead of compounding them. If that makes them appear more assertive and powerful, they need to take responsibility. Strong judicial review is not for the faint of heart.