Treatment of Evidence in Constitutional Law: R v Bryan

Yesterday, the Supreme Court of Canada (“SCC”) handed down its decision in R v Bryan, 2007 SCC 12, a case dealing with the right to publish federal election results on election night. The stakes were pretty low for both sides: the accused was convicted at trial for violating a provision of the Canada Elections Act, SC 2000, c 9, and was fined $1000.

The impugned provision (s. 329), which was used to charge the accused, simply forbids the transmission of election results from closed polling stations into areas where the polls have yet to close. In practice, this means the results from 32 ridings in Atlantic Canada are forbidden from being broadcast to voters in the Mountain and Pacific time zones for a maximum of three hours. Hardly the type of punishment or the type of law to make front-page headlines. Nevertheless, as this case amply demonstrates, media attention is not required to have the SCC hand down a case full of interesting jurisprudence.

I find this case to be interesting because it examines the proper burden imposed on the government to adduce actual evidence when dealing with constitutional claims involving deeply political, philosophical and sociological concepts. It also highlights the evidentiary difficulty faced by courts on a day-to-day basis in such claims. In this case there were basically only three pieces of evidence: expert testimony by a political scientist (Dr. Robert MacDermid), the Lortie Royal Commission on Electoral Reform, and a Decima poll showing that 70% of Canadians supported the media blackout imposed by s. 329.

The proper interpretation of this evidence, and how that interpretation bears upon the government’s responsibility to limit infringements of the Charter seems, to me, to be the entirety of the case. This narrow issue split the Supreme Court 5 to 4. The remainder of the law was fairly clear, as the SCC had dealt with similar issues in the recent decisions of Thomson Newspapers Co v Canada (Attorney General), [1998] 1 SCR 877 [Thomson Newspapers], and Harper v Canada (Attorney General), [2004] 1 SCR 827 [Harper].

The SCC “Majority”

The parties conceded that temporarily banning the transmission of election results, regardless of the short duration, was a violation of s. 2(b) freedom of expression. A unanimous SCC did not take any issue with that concession. Further, Harper clearly established a pressing and substantial objective for the government that is equally applicable to this case. Then, as now, the SCC unanimously held that “ensur[ing] that electors in different parts of the country have access to the same information before they go to the polls” was indeed a pressing and substantial objective. Likewise, the Court was unanimous in its finding that s. 329 was rationally connected to this objective. It was at the third and fourth stages of the Oakes test, minimum impairment and the balance of proportionality, respectively, that the SCC fractured.

As an aside: the fracture itself is interesting. Bastarache and Fish JJ. both wrote concurring opinions for the majority. Deschamps, Charron and Rothstein JJ. wrote that those two opinions “concur in the result… [and are] complementary.” But surely if Justices Bastarache and Fish wrote separate reasons, there must be at least some difference between them. If not, I cannot understand why they did not simply release jointly written reasons. And if there are indeed differences, it is imminently confusing for the plurality of judges in the majority to agree with both. For simplicity’s sake, I will refer to all of these opinions as “the majority.”

Both the majority and dissent speak a lot about context. Contextual factors, as set out in Thomson Newspapers, factor into the degree of deference owed to Parliament in any given case. After reviewing those factors in this case, the majority concludes that a high degree of deference is owed to Parliament with respect to specific provisions within a complex system of electoral law. Importantly, the SCC elucidates how that deference is translated into judicial reasoning:

What is referred to in Harper and Thomson Newspapers as a “deferential approach” is best seen as an approach which accepts that traditional forms of evidence (or ideas about their sufficiency) may be unavailable in a given case and that to require such evidence in those circumstances would be inappropriate…. The contextual factors are essentially directed at determining to what extent the case before the court is a case where the evidence will rightly consist of “approximations and extrapolations” as opposed to more traditional forms of social science proof, and therefore to what extent arguments based on logic and reason will be accepted as a foundational part of the s. 1 case.

No doubt as a result of this characterization, the basis of the majority decision is that s. 329 minimally impairs Charter rights, when viewed from the perspective of logic and reason. Specifically, the evidence shows that a majority of Canadians support the ban, that the Lortie Commission supports the idea, and that the expert testimony yields convincing political science reasons. They conclude that s. 329 is a “rational and justifiable solution.” The majority certainly surveys and carefully analyzes the evidence before them, but do not subject it to onerous scrutiny. This is reflected in their closing words which, though convincing, do not speak specifically to minimal impairment.

Justice Abella’s Dissent

The dissenting opinion, authored by Justice Abella, takes the opposite approach. Though Abella J. agrees with the majority that Parliament is owed a degree of deference in matters such as this, that does not excuse them from their responsibility justify, under s. 1, the legislation. She writes that

“while scientific proof may not always be necessary or available, and social science evidence supported by reason and logic can be relied upon, the evidence must nonetheless establish the consequences of imposing or failing to impose the limit.”

She then expertly finds flaws with all of the evidence, though most of the flaws could be considered academic. Specifically, some of the expert testimony is based on U.S. experience, and is not necessarily transferable to the Canadian landscape; likewise, there were methodological flaws in the Decima survey. Finally, Justice Abella highlights separate parts the Lortie Commission, which actually conclude that the specific release of the 32 Atlantic riding results would not be a major concern.

Commentary

I think this case offers an excellent insight into the importance of the formulation of the test for deference to Parliament. Under the rubric offered by Bastarache J., one allowing a predominant focus on logic and reason, the conclusions of the majority flow rationally from the evidence. Likewise, under the rubric offered by Abella J., a more rigorous analysis of the evidence shows that it may very well be incapable of independently demonstrating that this legislation passes s. 1 scrutiny.

It also offers insight into how judges, even judges at the SCC, can reasonably disagree about even a single piece of social science evidence. Here, the majority viewed the conclusions of the Lortie Commission as favouring the law. They highlighted passages demonstrating Canadians’ distaste for uneven electoral knowledge. Conversely, the dissenting portion of the SCC read the Royal Commission as having concluded that, while uneven electoral knowledge is an evil to be avoided, specifically allowing the Atlantic ridings to report their results would have negligible effects. From this, they viewed the Commission’s report as practically spelling out that the law could not pass s. 1.

Finally, it is worth noting that this case offers a rare and predominant focus on the salutary and deleterious effect analysis under the Oakes test. Professor Hogg notes in Constitutional Law of Canada that a case has never been decided by the SCC under this final branch of the test. Here, the dissenting judges chose to forgo the minimal impairment analysis, since in their opinion the legislation failed this final branch. Since their opinion wasn’t in the majority the final branch’s trend will have to continue, but this was still the most important role that I have seen it play.