An Age of Facts? R. v. Smith, 2015 SCC 34

A new edition of Grant Gilmore’s classic Storrs Lectures, The Ages of American Law, was published recently with a new postscript by Philip Bobbitt. Gilmore left American law in the “Age of Anxiety”, an era in which I fear Americans remain, although Bobbitt makes a powerful case for the emergence of an “Age of Consent”.

Meanwhile, in Canada, one might be tempted to say that we are living in the “Age of Facts”, at least in the area of constitutional jurisprudence. R. v. Smith, 2015 SCC 34 is the latest in a series of cases in which the Supreme Court of Canada has struck down a regulatory regime or decision as unconstitutional based on trial-level findings of fact that harm had been caused to individuals in violation of the Charter guarantee of “security of the person”. Here, it was the exclusion of dried marijuana products from medicinal marijuana that failed to pass constitutional muster, a dubious honour also bestowed on prostitution laws (Bedford) and assisted suicide laws (Carter). To these cases one must add Insite, where the refusal to grant an exemption from narcotics laws to a successful supervised-injection clinic was held to be unlawful.

In each of these cases, a first-instance court found that the operation of the regulatory regimes in question caused harm to individuals in an arbitrary way (a violation of the Charter right to security of the person), and on appeal the Supreme Court deferred to these findings of fact.

Smith is an excellent example. Medical marijuana products are available for those who need them, but not in dry form. The practical effect is that the marijuana must be smoked, not taken orally or applied topically. On the evidence, the Court held, the restriction “subjects the person to the risk of cancer and bronchial infections associated with smoking dry marihuana, and precludes the possibility of choosing a more effective treatment”, thereby also “forcing a person to choose between a legal but inadequate treatment and an illegal but more effective choice” (at para. 18).

This deprivation of “security of the person” was arbitrary, because “[t]he effects of the prohibition contradict its objective”: the evidence was “that the prohibition on non-dried medical marihuana undermines the health and safety of medical marihuana users by diminishing the quality of their medical care” (at para. 25). To Canada’s argument that there was “a regulatory scheme that only allows access to drugs that are shown by scientific study to be safe and therapeutically effective”, the Court responded in part with findings of fact made at trial: “The evidence accepted at trial did not establish a connection between the restriction and the promotion of health and safety.  As we have already said, dried marihuana is not subject to the oversight of the Food and Drugs Act regime.  It is therefore difficult to understand why allowing patients to transform dried marihuana into baking oil would put them at greater risk than permitting them to smoke or vaporize dried marihuana” (at para. 26). Canada had not provided evidence on this point. Finally, Canada could not establish either any connection between the restriction and “attempts to curb the diversion of marihuana into the illegal market”: “We are left with a total disconnect between the limit on liberty and security of the person imposed by the prohibition and its object” (at para. 27).

In some ways this “empirical turn” is unobjectionable. In administrative law, ideological reasons for decisions are generally impermissible: readers from the Commonwealth will remember the ‘Fair Fares‘ case and Americans the ‘Seatbelts‘ matter that gave us the modern formulation of arbitrary and capricious review (though see this interesting paper by Kathryn Watts). Similar judicial instincts seem to be at play here, with the state often reduced to ideological arguments based on personal choice; powerful and all as these arguments may be in the abstract, they have less concrete force than the evidence of harm contained in the record before the courts.

But there are some problems. One difficulty is that it places enormous power in the hands of first-instance judges, power they have not necessarily been trained to wield. An old joke has it that lawyers are smart people unable to cope with blood or numbers. There is a lot of blood and a lot of numbers in these cases: for a particularly good example of an unsuccessful empirical s. 7 claim, see Barbra Schlifer Commemorative Clinic v. Canada, 2014 ONSC 5140.

A related difficulty is that it places an important burden on applicants in constitutional cases, who must develop a detailed record. Indeed, there is a tension between the Court’s ever-broader approach to standing — which permits less well-resourced public interest applicants to bring constitutional cases — and the harm-based approach to s. 7 — which, in reality, permits only well-funded, high-profile organizations into the arena.

Revamping old procedural rules for this brave new world is also difficult. On Thursday, the Court will decide whether to grant leave to determine whether the Ontario Court of Appeal should have struck out a claim by advocates for the homeless based on the pleadings alone (Tanudjaja v. Canada (Attorney General), 2014 ONCA 852). I found Feldman J.A.’s dissent a persuasive attempt to come to terms with this new type of constitutional challenge, for if demonstrating harm depends on producing a detailed record, it is difficult to see how a s. 7 claim can ever be struck out at a preliminary stage. Who knows what the trial process may reveal? If it grants leave — as it surely must — the Court will have to explain how empirical s. 7 claims can be argued and defended within the common law’s procedural (and possibly institutional) constraints.

Lastly, the approach in s. 7 claims is not especially consistent with the Court’s practice in other areas. It is fair to say the Court is not known for shying away from delving into intricate factual details rather than, say, remanding cases for resolution by lower courts. And in areas of the law closely related to s. 7, empirical evidence is often conspicuous by its absence: Léonid Sirota points to R. v. Tatton, 2015 SCC 33 and I would add Henry v. British Columbia (Attorney General), 2015 SCC 24 where a ‘chilling effect’ was advanced as a reason for protecting prosecutors from claims for breaches of Charter rights without an iota of supporting evidence.

In summary, this ‘Age of Facts’ is making me a little bit anxious.

This content has been updated on June 23, 2015 at 10:39.