Loosening the law’s bite: Law, fact, and expert evidence in R v JA and R v NS
| Published date | 01 July 2017 |
| Date | 01 July 2017 |
| DOI | http://doi.org/10.1177/1365712717690752 |
| Subject Matter | Articles |
Article
Loosening the law’s bite:
Law, fact, and expert evidence
in RvJA and RvNS
Dana Erin Phillips
Osgoode Hall Law School, York University, Graduate Program, North York, ON, Canada
Abstract
Faced, in the wake of the Canadian Charter of Rights and Freedoms, with decisions that bear
upon unfamiliar realms of social life, Canadian courts have turned to making factual determi-
nations based on social science and other expert evidence. Such evidence can help litigants
from marginalised groups to challenge exclusionary norms and ‘common sense’ assumptions
that form part of judicial reasoning. However, litigants seeking to disrupt the legal status quo in
this way face a number of challenges. While many commentators have emphasised the pro-
hibitive cost of bringing expert evidence, this article points to a prior challenge—the need to
convince the court to see the relevant issue as a fact amenable to proof in the first place. To
illustrate the significance of this initial framing challenge, I examine two recent criminal cases—
RvJA and RvNS—where expert evidence may have been useful but was scant.
Keywords
expert evidence, law and fact, marginalised groups, RvJA,RvNS, social difference
Introduction
Criminal cases in the era following the implementation of the Canadian Charter of Rights and Freedoms
1
sometimes call upon judges to make decisions about social practices and identities that lie far afield of
their own experience.
2
For example, Canadian courts have recently had to grapple with the constitu-
tionality of criminal laws related to polygamy
3
, prostitution
4
, assisted suicide
5
and supervised injection
Corresponding author:
Dana Erin Phillips, Osgoode Hall Law School, York University, Graduate Program, 4044 IKB North York, ON M3J 1P3, Canada.
E-mail: danaphillips@osgoode.yorku.ca
1. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the ‘Charter’).
2. Regarding the limited experience of judges, see n. 45.
3. Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588, [2011] BCJ No 2211.
4. Canada (Attorney General) vBedford, 2013 SCC 72, [2013] 3 SCR 1101.
5. Carter vCanada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331.
The International Journalof
Evidence & Proof
2017, Vol. 21(3) 242–261
ªThe Author(s) 2017
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DOI: 10.1177/1365712717690752
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6
. Faced with decisions that bear upon largely unfamiliar realms of social life,
courts have increasingly turned to making factual determinations on the basis of social science and other
expert evidence (Mayeda, 2008: 204; see also Boyle and MacCrimmon, 2001: 69). The influx of expert
evidence into the courtroom may be attributed both to the increased adjudication of complex social
issues under the Charter, and the expansion of relevant research from other disciplines (Pinard, 2012:
49). It also exemplifies a trend towards interdisciplinarity in legal thought (Boyle and MacCrimmon,
2001: 61). As Boyle and MacCrimmon observe:
Historically, the discipline of law has jealously guarded its borders; insights of other disciplines have not
readily been incorporated into lega l discourse. However, insights from other dis ciplines can operate to
facilitate open-minded fact determination. (Boyle and MacCrimmon, 2001: 81)
When expert evidence is provided in litigation, it can broaden the horizons of judicial knowledge, and
thereby benefit marginalised social groups.
7
However, courts do not always receive the information they
need in order to make informed conclusions about social facts. This paper looks at how Canadian courts
in two recent criminal cases—RvJA
8
and RvNS
9
—determine issues that bear upon marginalised social
interests when the expert evidence presented to the court is scant. The analysis reveals an oft-overlooked
challenge for those seeking to stretch legal boundaries through expert evidence: the need to successfully
frame the issues at stake as contested matters of fact in the first place.
Bentham famously stated: ‘The field of evidence is no other than the field of knowledge’ (Bentham,
1843: 5). Two centuries later, Boyle and MacCrimmon note that in a society consciously committed to
pluralism, the important question for evidence law today is ‘whose knowledge?’
10
In this paper, I use the
term ‘legal worldview’ to refer to the web of experiences, values and beliefs perpetuated by the common
law, whether through legal precedent, convention or judicial notice—often informally appealed to as
‘common sense’. My conception of la w includes judicial (and statut ory) articulations of rules and
principles, but also the assumptions and related social norms that judges rely upon, whether implicitly
or explicitly, to ground legal reasoning—what I refer to collectively as ‘legal assumptions’.
As argued by Samuel, law as a system of knowledge is distinct from empirical disciplines in that
‘epistemological validity arises not from scientific inquiry but uniquely from authority’ (Samuel, 2009:
204; see also Faigman, 2008: 178). This is not to say that legal assumptions cannot be criticised on
empirical grounds. However, the holdings supported by those assumptions do not lose their status as law,
nor their weight as legal authority, on account of that criticism. Unlike science, the validity of law does
not depend on verification against an external social reality. In this sense, law is a self-contained
knowledge system.
11
Building on Samuel’s conception of legal epistemology, I argue that subjecting
the ‘common sense’ assumptions and norms built into legal reasoning to factual scrutiny can disrupt the
hegemony of legal worldviews and thereby empower marginalised social interests. However, as seen in
JA and NS, litigants who seek to upset the legal status quo through expert evidence face an uphill
struggle. It is the character of that struggle that concerns me here.
There are two challenges that arise for such litigants. The one most frequently identified is the need to
supply adequate expert evidence with respect to the matter at issue. As equality-oriented scholars have
noted, this can raise difficulties due both to gaps and biases in the available social science research
(Brockman, 1991: 230–234; Mayeda, 2008: 203, 223), and to the resources required to engage experts in
6. Canada (Attorney General) vPHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134.
7. Boyle and MacCrimmon, 2001: 62. Of course, expert evidence may also be prone cultural biases. See comments below under
‘Social difference’.
8. RvJA, 2008 ONCJ 195, [2008] OJ No 1583 affirmed in 2011 SCC 28, [2011] 2 SCJ No 28.
9. RvNS, 2012 SCC 72, [2012] SCJ No 72.
10. Boyle and MacCrimmon, 2001: 61–62. This comment was not made in direct response to Bentham, but it reflects and extends
his insight.
11. Samuel, 2009: 205. Richard Lempert (1997) makes a similar point with respect to evidence law specifically.
Phillips 243
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