Loosening the law’s bite: Law,fact,and expert evidence in R v JA and R v NS

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 determinations 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 prohibitive 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—R v JA and R v NS—where expert evidence may have been useful but was scant.