25 November 2016

- Report by Benjamin Perryman, 2015 Trudeau Scholar and Lisa Kerr, 2012 Trudeau Scholar

Since the advent of the Canadian Charter of Rights and Freedoms, courts have become a focal point for policy change in Canada. Faced with litigation and court rulings, governments have been forced to develop or amend policy in such areas as safe injection sites, sex work, and assisted dying. Increasingly, these landmark cases include extensive social science evidentiary records.

On 16 November 2016, Benjamin Perryman (2015 Trudeau Scholar & JSD Candidate, Yale Law School) and Lisa Kerr (2012 Trudeau Scholar & Assistant Professor of Law, Queen’s University) hosted a workshop in Vancouver, BC to better understand the key role that social science evidence plays in litigation strategies and judicial decision-making, and to examine best practices for effectively developing and using social science evidence for litigation-driven policy change.

Sponsored by the Pierre Elliott Trudeau Foundation and Farris, Vaughan, Wills & Murphy LLP, the workshop brought together judges (from all levels of court in Canada), practicing lawyers (from government, non-profit, and private practice), academics, law clerks, and others, to learn how to effectively use social science evidence in court cases with explicit policy change objectives.

The increased use of social science evidence in constitutional litigation explains Perryman has the potential to emphasize the voice of marginalized litigants and assist judges with the difficult task of interpreting, applying, and balancing constitutional rights. But the process is not simple says Kerr. To be successful, litigants must navigate a complex and technical area of the law and engage in the resource-intensive process of compiling extensive evidentiary records. Expert heavy records have played a central role in enabling judges to adjudicate cutting-edge human rights questions. But the turn to heavy trial records also imposes costs and complexity and attendant barriers in accessing justice.

Workshop participants were treated to a variety of presentations that engaged in this complexity, starting with a keynote address by the Honourable Lynn Smith, former Justice of the BC Supreme Court, and ending with a timely panel on challenging administrative segregation in Canadian jails. Other presenters included the Honourable Marie Deschamps, former Justice of the Supreme Court of Canada & 2015 Trudeau Mentor, the Honourable Lance Finch, former Chief Justice of BC and Yukon, as well as representatives from the Department of Justice Canada, Pivot Legal Society, the Women’s Legal Education and Action Fund, the BC Liberties Association, and various medical and legal university faculties. The workshop agenda can be found here.

The workshop was a huge success in the eyes of participants, with 95% of post-workshop survey respondents rating it as either “excellent” or “very good.” The workshop also achieved a significant degree of interdisciplinary dialogue between disciplines, one of the Pierre Elliot Trudeau Foundation’s key objectives. Participants reported that the workshop was “wonderfully interdisciplinary” and included “a terrific mix of judges, lawyers, and social science scholars—more than I've ever had at a conference before.”

Co-organizers Perryman and Kerr are still in the process of planning next steps. Based on participant feedback, these might include a compendium of academic articles capturing insights from the workshop or a second workshop focusing more explicitly on the social science side of the issues raised. Those interested in staying informed about future activities on this topic can sign-up to the workshop mailing list.

Lisa Kerr

She is rethinking current approaches to incarceration and justice, focusing on the quality of a prison sentence rather than on the length of time served.

2012 Scholars

Benjamin Perryman

Benjamin Perryman (law, Yale University) is applying the emerging science of happiness to ways that Canadian justice might better reflect the needs and aspirations of all citizens, including the marginalized.

2015 Scholars