The Rise of Facts in Public Law IV: Facts as Constitutional Causes of Action

In a draft book chapter I am working on with co-author Kseniya Kudischeva, we discuss the increased importance of factual assessments in public law. This is the fourth of four substantive parts (see Part I here, Part II here and Part III here). Comments and thoughts welcome.

We turn lastly to a distinctly Canadian phenomenon, or at least one we believe to be distinctively Canadian. This is the use of facts to develop constitutional causes of action.

In a series of cases in the 2010s, the Supreme Court of Canada struck down regulatory regimes as unconstitutional based on trial-level findings of fact that harm had been caused to individuals in violation of the guarantee of “life, liberty and security of the person” set out in s. 7 of the Charter of Rights and Freedoms. In each of these cases, a first-instance court found that the operation of the regulatory regimes in question caused harm to individuals in violation of the Charter right to security of the person, and on appeal the Supreme Court deferred to these findings of fact, even where they were inconsistent with binding precedent.

As s. 7 of the Charter is central to these cases, it is necessary to briefly explain the provision and the jurisprudence which has accumulated around it. Section 7 provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Section 7 is disjunctive and contains three rights: life, liberty and security of the person. A violation of s. 7 requires an infringement of one of these rights. Any infringement must comport with the principles of fundamental justice. That is, if life, liberty or security of the person is infringed upon without respecting the principles of fundamental justice, s. 7 has been violated. Canadian courts have recognized many principles of fundamental justice. The most important for present purposes are arbitrariness, gross disproportionality, and overbreadth. If an infringement of one of the s. 7 rights is arbitrary, grossly disproportionate, or overbroad, this will amount to a violation of s. 7.

Any such violation can be ‘saved’ under s. 1 of the Charter, which allows for rights to be limited where it is necessary in a democratic society: a proportionality test is applied. Layering a proportionality test upon the principles of fundamental justice in s. 7 creates some complications. The general view is that s. 1 will only save a s. 7 violation in extraordinary cases. The cases from the 2010s turned out not to be extraordinary. Faced with deprivations of a constitutional right, the Supreme Court gave little weight to moral or political considerations relating to the desirability of regulating sex work or assisted suicide.

Canada (AG) v Bedford involved a challenge to Canada’s sex work laws using new social science evidence.[1] Previously, in the so-called Prostitution Reference, the Supreme Court had affirmed the constitutionality of federal anti-sex work legislation.^[2] But the s. 7 challenge in Bedford succeeded: the courts struck down the criminal prohibitions on bawdy-houses, living on the avails of prostitution, and communicating in public. Notice that the legislation in question did not criminalize sex work as such – engaging in sex work was lawful, with these prohibitions designed to reduce the attraction of engaging in sex work and to diminish the risk that third parties – pimps – would profit from the activities of sex workers.

New social science evidence impacted this litigation. The applicants developed a massive record filled with 88 volumes of over 25,000 pages of evidence. The record used evidence from sex workers and experts in a wide range of social science disciplines.^[3] Ultimately, the Supreme Court relied heavily on the application judge’s finding of facts. For example, the application judge had found the following:

• the bawdy house provision blocked the safest way to sell sex—working “in-call” from a fixed location;
• without communicating to engage in prostitution, sex workers lost “the ability to screen clients, an ‘essential tool’ to avoiding violent or drunken clients”; and
• the living-of-the-avails prohibition prevented sex workers from hiring bodyguards, drivers, or receptionists who could make work safer.

Although violent clients and pimps created the risks to sex workers’ safety, the existence of these offences actively blocked sex workers from taking steps to reduce their risks. All three laws denied fundamental justice. The living-on-the-avails provision was overbroad. Despite targeting those who exploit sex workers, the provision also captured those who could help increase sex workers’ safety and security. The other two provisions, prohibiting bawdy-houses and communicating in public, were grossly disproportionate. Taking sex work out of public view by prohibiting communication cost sex workers their screening ability—speaking with clients in public before relocating. And while the bawdy-house provision meant to reduce nuisance, this offence criminalized all sex work in fixed indoor locations, even in sex workers’ homes, pushing sex workers to the streets.

Bedford was an extremely important case. For one thing, the Supreme Court admonished the Court of Appeal for “erroneously substitut[ing] its [own] assessment of the evidence for that of the application judge”^[4] rather than deferring to the application judge’s fact findings, including on social and legislative facts. For another thing, the Supreme Court held that in situations where the law has evolved or there has been a change in circumstances or evidence “that fundamentally shifts the parameters of the debate”, a trial judge may depart from binding Supreme Court precedent: given the findings of fact of the trial judge, a departure from the Prostitution Reference was justified.[5] In combination, these features of Bedford meant not only that findings of fact could support a legal conclusion that s. 7 of the Charter had been infringed but also that the same findings could justify departure from binding authority. 

Bedford thus set the stage for judicial consideration of the hot-button issue of assisted suicide. In Carter v Canada, the Supreme Courtreconsidered the constitutionality of physician-assisted dying.^[6] Ms. Taylor suffered from Lou Gehrig’s disease (ALS), an illness that degraded her ability to move. As her health deteriorated, Ms. Taylor wanted to choose the moment to end her life, using a doctor’s help when the time came. Ms. Taylor, joined by plaintiffs including Ms. Carter, challenged s. 241(b) of the Criminal Code, which criminalized aiding or abetting a person to commit suicide. They developed a significant factual record designed to justify a departure from the Supreme Court’s 1993 decision upholding the assisted suicide prohibition against a s. 7 challenge.^[7]

As in Bedford, the Supreme Court used the trial judge’s findings, “based on an exhaustive review of the extensive record before her” to uphold the trial decision.^[8] The Supreme Court unanimously ruled that the provision criminalizing physician-assisted death violated Ms. Taylor’s s. 7 rights. The provision deprived Ms. Taylor’s right to life by forcing her to choose between premature suicide or losing her ability to control the manner and time of her death. The provision stripped her right to liberty by removing her autonomy over her body and medical care. And her right to security of the person preserved her quality of life from facing intolerable suffering.

The prohibition violated s.7 rights in a way that denied fundamental justice. While meant to protect the vulnerable from committing suicide in times of weakness, the evidence showed that this prohibition caught individuals outside of the protected class. The apex court relied here on the trial judge’s finding that Ms. Taylor was not vulnerable, as she was “competent, fully informed, and free from coercion or duress.”^[9] Her situation, like those of the other affiants, showed that this provision prohibited physician-assisted death for “competent adults who are suffering intolerably [from] a grievous and irremediable medical condition.”^[10] The Supreme Court struck down the prohibition as overbroad.

The apex court also deferred to the trial judge’s fact finding when deciding that s. 1 of the Charter did not justify the prohibition violating Ms. Taylor’s s. 7 rights. Could Canada safely replace its blanket ban on physician-assisted suicide with a more permissive regime that respected Canadians’ life, liberty, and security of the person? Having heard evidence “from scientists, medical practitioners, and others who were familiar with end-of-life decision-making in Canada and abroad”,^[11] the trial judge answered “yes”. Using this evidence, the trial judge concluded that a more permissive regime with proper safeguards could remove the risks of error or abuse. As the apex court affirmed, it was open to the trial judge to find that properly trained physicians could “reliably assess patient confidence and voluntariness” when they chose to die with dignity.[12] Accordingly, there was a s. 7 violation and the Supreme Court’s previous decision was no barrier to a finding that assisted suicide prohibition was unconstitutional.

In Bedford and Carter, the legal regimes in question, relating to sex work and assisted suicide, had been the subject of passionate public debate (though the extent of serious parliamentary consideration of reform is debatable). Nonetheless, despite the democratic imprimatur such regimes bear, they may be challenged in s. 7 cases and invalidated where the evidence demonstrates that the regimes cause harm to individuals. In Bedford and Carter, first-instance fact finding even allowed trial judges to break free of binding precedent.

Practical and principled difficulties again arise.

On the practical side, this approach places an important burden on applicants in constitutional cases, who must develop a detailed record. Indeed, there may be a tension between an ever-broader approach to standing — which permits public interest applicants to bring constitutional cases[13] — and the harm-based approach to s. 7 — which, in reality, permits only well-funded, high-profile organizations into the arena. And there is an ever-present risk of waste: in Bedford and Carter the challenges were successful, but there are other high-profile cases where challenges foundered for want of evidence, notwithstanding the significant resources expended by challengers.[14]

On the principled side, in determining such challenges, first-instance judges have enormous power. First, their findings of fact are entitled to deference on appeal: if a trial judge finds that a particular decision or regulatory regime causes harm such as to deprive individuals of life, liberty or security of the person, an appellate court is bound by that finding (unless the government can demonstrate that the findings were tainted by palpable and overriding error). Second, their findings of fact may justify a departure from binding precedent, even venerable decisions of the Supreme Court of Canada. Decisions to depart from precedent can be appealed, of course, and an appellate court can substitute its judgment on whether the departure was justified but nonetheless, these two features place enormous power in the hands of first-instance judges.

It is questionable whether it is appropriate in common law systems for judges to perform this particular role. On the one hand, where expert evidence is tendered about the operation of a regulatory regime, judges can make findings of fact as to which body of expert evidence should be preferred. Moreover, in both Bedford and Carter a causal link between the harm suffered and the legal prohibitions challenged was established: the first-instance judges were not acting as Royal Commissions. On the other hand, it might be objected that the fact that changes in ‘legislative’ facts are established through an ‘adjudicative’ process does not make courts the proper arbiters of whether social change should lead to legal change, especially in circumstances where the necessary change could be achieved by legislative action. Indeed, significant power is also placed in the hands of the social-science researchers who provide the evidence base for such challenges.[15] Perhaps as a matter of constitutional, political or moral theory, there is something to be said for empowering trial courts in this way. But doing so is inconsistent with the ordering of common law legal systems, which funnel questions of principle to apex courts for authoritative resolution.

In this area, too, there have been responses to practical and principled difficulties. Soon after Carter, the Supreme Court of Canada rowed back from the high water-mark of the 2010s. Faced in R v Comeau with a trial judge who had departed from binding precedent based on convincing historical adjudicative facts about the intentions of the framers of the Canadian Constitution, the Court unanimously held that stare decisis binds first-instance fact finders in all but the most “extraordinary circumstances”.[16] Only where “the underlying social context that framed the original legal debate is profoundly altered” is a departure from precedent warranted[17] – even though here the evidence overwhelming favoured the trial judge’s preferred interpretation of the constitutional provision at issue, the precedent should have held. More broadly, the message to trial courts was clear: Bedford and Carter were exceptional cases, the exercises there undertaken by first-instance judges not lightly to be repeated.[18]

Ultimately, given developments in respect of systemic challenges to regulatory regimes, the only areas in which Bedford- and Carter-type challenges are feasible is where there is a distinct criminal law prohibition against a particular type of conduct and the prohibition directly causes serious physical or psychological harm. These limitations were not articulated in terms in Bedford and Carter, but they are inherent to any challenge using facts as constitutional causes of action.  As soon as there is a discretionary element in a regulatory regime, the limitations developed in the context of systemic challenges to regulatory regimes kick in, reducing the scope for first-instance judges to upset settled precedent on the basis of a detailed factual record, and alleviating the practical difficulties by ensuring an appropriately tailored evidential basis.

In this area, as in the others canvassed in this Chapter, greater judicial willingness to countenance factual assessments has created practical and principled difficulties, prompting judicial responses designed to remedy those difficulties.

[1] 2013 SCC 72, [2013] 3 SCR 1101.

[2] Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Ma.) [1990] 1 SCR 1123.

[3] See Debra Haak, “The Good Governance of Empirical Evidence about Prostitution, Sex Work, and Sex Trafficking in Constitutional Litigation Queen’s Law Journal” (2021) 46 Queen’s LJ 187 at 192 noting “expert evidence from a range of social science disciplines including anthropology, criminology, psychology, sociology, history, medical ethics, political science, and forensic psychology”.

[4] Bedford (n 68), [154].

[5] ibid [42].

[6] 2015 SCC 5 , [2015] 1 SCR 331.

[7] Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519.

[8] Carter(n 73), [3].

[9] ibid [86].

[10] ibid [68].

[11] ibid [104].

[12] ibid [106].

[13] See generally, Canada (AG) v Downtown Eastside Sex Workers United Against Violence Society 2012 SCC 45, [2012] 2 SCR 524.

[14] See e.g. Barbra Schlifer Commemorative Clinic v Canada, 2014 ONSC 5140.

[15] Debra Haak, “The Good Governance of Empirical Evidence about Prostitution, Sex Work, and Sex Trafficking in Constitutional Litigation Queen’s Law Journal” (2021) 46 Queen’s Law Journal 187.

[16] 2018 SCC 15, [2018] 1 SCR 342, [26].

[17] ibid [31].

[18] See e.g. Kerri Froc and Michael Marin, “The Supreme Court’s Strange Brew: History, Federalism and Anti-Originalism in Comeau” (2018) 70 UNBLJ 298.

This content has been updated on May 10, 2022 at 16:39.