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Research Rising

The status of research-based evidence in the Canadian courts moved up a notch with the resounding Insite decision by the Supreme Court. The implications for social scientists and their work could be profound.

BY DIANE PETERS | DEC 05 2011

In September, the Supreme Court of Canada handed down a sternly worded, unanimous verdict in the case of Canada v. PHS Community Services Society. Chief Justice Beverley McLachlin ordered the federal minister of health to grant Vancouver’s supervised injection facility, Insite, a permanent exemption from the Controlled Drugs and Substances Act. Chief Justice McLachlin wrote that Insite was saving lives in Vancouver’s Downtown Eastside and shutting it down would violate Section 7 of the Canadian Charter of Rights and Freedoms, which states that citizens have the right to “life, liberty and security of the person.”

The verdict referenced some of the 50 or so studies conducted at Insite since it opened in 2003. Research showed the facility had not led to an increase in crime in its immediate vicinity, that 336 overdoses occurred at Insite between 2006 and 2008 but no fatalities (thanks to the work of the facility’s nurses), that every dollar spent there meant up to $2.90 in long-term savings (mostly due to fewer HIV infections) and that the use of detoxification services increased 30 percent after the facility opened.

While evidence-based research often weighs heavily in court cases, this one was different. “What’s somewhat novel about this case is how pivotal the evidence was,” says Neil Boyd, professor of criminology at Simon Fraser University. The research turned the case, and as a result the court instructed the government to go against its own law.

“This is a new step in constitutional jurisprudence,” adds Kent Roach, a professor at the University of Toronto’s faculty of law. “It seems to be a signal that the courts are going to look at social science evidence more closely.”

This shift gives lawyers hope that their charter challenges on a wide array of social issues might succeed. It is also resonating with researchers working in the social sciences, on topics ranging from prisons to prostitution to health care. The new emphasis leads academics to believe that their findings may have more impact on people, particularly the disadvantaged and the criminalized. But the shift also puts them and their work under more intense scrutiny than ever before.

The impact of the Insite case is likely to be felt in the courts soon, most prominently in Bedford v. Canada, an Ontario case that’s challenging aspects of Canada’s prostitution laws. The Ontario Superior Court decision – an appeal by the federal government is under way – found that three laws on prostitution were unconstitutional because they infringed on life, liberty and security. In this case, Toronto lawyer Alan Young submitted more than 25,000 pages of evidence, a substantial chunk of it academic research on the impact of prostitution law on the health and welfare of women working in the sex trade. Several expert witnesses testified in the case, which began in 2010, including criminologists, psychologists, sociologists and even a historian.

Experts also expect that the Supreme Court decision on Insite will influence charter hearings in British Columbia regarding the illegality of polygamy, as well as another B.C. case questioning Canada’s euthanasia laws and an Ontario challenge that says the right to housing should fall under the charter.

The Insite decision leaves open to challenge any law where the rules don’t match up with documented evidence. Social scientists in Canada say research and the law are far apart on things like mandatory sentencing, illicit drug use and even access to childcare.

“The vast majority of policy in this country right now has been made for political reasons, not based on scientific evidence,” says Gayle MacDonald, dean of research and a professor of sociology at St. Thomas University in Fredericton, who testified in the Bedford case.

It was not always this way. The independent Law Reform Commission of Canada (1971-1993, then revived as the Law Commission of Canada in 1997) was set up to make policy recommendations to the federal government based on expertise, in order to keep laws up to date. The Conservative government disbanded the law commission in 2006 as part of its cost-cutting exercise. Today, five provinces have similar bodies to inform provincial law.

Both provincial and federal governments used to employ social scientists who helped shape legislation. Budget cuts over the last few decades mean few of these jobs remain. “Back when I was in grad school,” says Dr. MacDonald, “one of the potential jobs was working for government on policy. That’s no longer the case.”

This trumping of research findings over existing law has given hope to researchers whose work, sometimes over the course of decades, has shown just how detrimental laws have been to prostitutes, drug addicts and prisoners. But it also means a subtle change in the job description for social scientists delving into policy-related issues.

“For those of us who have believed for a long time that the courts should be paying attention to relevant evidence in these emotionally driven, controversial issues,” says Professor Boyd of SFU, “I think it means we have a responsibility to develop research paradigms that may assist the courts.”

This could be a stretch for many academics in the social sciences, warns Penny Gurstein, director of the school of community and regional planning at the University of British Columbia. “I think a lot of academics don’t really understand what policy is and how it’s made,” she says.

To endure the adversarial approach in the courts and in parliament, researchers need to keep possible counter-arguments in mind when they structure their work, says Professor Boyd of SFU. Studies that highlight costs and public safety make the biggest impression on legislators, he adds, and using plain language ensures lawyers and judges will understand the studies.

Peer review plays a key role in legal proceedings: studies that have not gone through the process are not admissible in court. But a lot of key social science research is conducted for community groups and non-profits, notes Dr. Gurstein. This work often goes out in annual reports and newsletters and rarely gets submitted to journals.

Thomas Kerr, associate professor of medicine at UBC, is a principal investigator of several key studies concerning Insite in his work at the B.C. Centre for Excellence in HIV/AIDS. He says he made it a policy to wait until the reports were peer reviewed before making the findings public. Everything his team published went into open-access journals, and he made sure that their research methods were exact and transparent. “We went about this in a very careful way. We did not want to write reports that could get dismissed in court,” says Dr. Kerr.

Researchers who have successfully influenced law say that simply publishing their work is not enough. They do media interviews, create plain-language summaries of their studies and get involved in the community. Insite researchers, for instance, held a public forum to share their results.

Nevertheless, once research becomes part of legal or government proceedings, data can be ignored or misinterpreted. When Insite researchers presented their conclusions to the House of Commons in May 2008, politicians latched onto the statistic that five percent of injections in Vancouver’s Downtown Eastside were taking place at the safe injection facility – and 95 percent elsewhere. The researchers reminded parliamentarians that there were 4,600 drug addicts in the area, shooting up several times a day, and that Insite was small and running at capacity. No matter: it still sounded like the facility was having little effect.

Moreover, when an academic takes the stand, his or her conclusions, credentials, cohort size, funding source and personal connections are all up for questioning during cross examination. Litigants will even commission their own research to debunk existing work. (Professor Boyd was hired by the federal government to question existing Insite research; his conclusions agreed that the facility was saving lives and money.) U of T’s Professor Roach says experts may be asked to draw black-and-white conclusions that are impossible to make in certain fields of study. “I think social scientists who go into this have to go in with their eyes open.”

To be able to truly participate in work that has potential legal impact, researchers find they must turn into advocates, which has repercussions.

Dr. Kerr had his funding cut by Health Canada. (He resubmitted his ideas to the Canadian Institutes of Health Research, which not only funded him but also ranked his proposal number one.) Last fall, the advocacy organization Drug Free Australia lodged a complaint with UBC against his research team, saying there were flaws in their paper, published in the Lancet, showing a 35-percent reduction in overdose deaths at Insite. UBC had the charge investigated independently, and dismissed it. “We have been attacked and we’ve been undermined,” says Dr. Kerr. “We’ve grown a thick skin through this experience.”

Looking at the broader landscape, some say that if research plays a growing role in legal issues this could lead to “junk science” flooding the courts and confusing the issues. As well, bringing in more evidence and more experts increases the cost and time involved in lawsuits. “There is a danger that those who bring charter cases will have to have deeper pockets,” warns Professor Roach.

While the Insite case was pivotal, a seismic shift hasn’t happened in public policy, at least not yet. A change that Dr. Gurstein would like to see is for universities to pay closer attention to community-based research. She thinks social scientists who do lower profile, on-the-ground work need better recognition for it in promotion and tenure decisions as well as more support in getting grassroots studies published and peer reviewed. She recommends more interaction between disciplines, so academics in a range of social sciences disciplines can learn about law, policy and how governments work. Others argue that judges and lawyers need to learn more about academic research.

Already, some groups are doing their part to better marry evidence with policy. The New Brunswick Social Policy Research Network was founded in 2010 by a former member of parliament, Andy Scott, to make sure new laws in that province have a basis in fact. Members include politicians and representatives from universities, all of whom chip in to fund the group. Next March, the University of Toronto’s David Asper Centre for Constitutional Rights will be holding a three-day conference on charter litigation and the use of social science research.

All of these are small steps in what many academics hope will be a move away from a legal system dotted with laws inspired by tradition, passion and politics and towards rules that help to keep everyone healthy, equal and living with dignity.

PUBLISHED BY
Diane Peters
Diane Peters is a Toronto-based writer and editor.
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  1. Patrick Fafard / December 5, 2011 at 20:46

    This is a very curious bit of reporting and analysis. First, while it is popular to read the Supreme Court decision on INSITE as research evidence trumping politics, in fact, INSITE continues as a result of a long political struggle of which the SCC decision was only a part. Second, the article contains a number of broad claims that are themselves dubious and for which no evidence is provided. For example, to claim that “The vast majority of policy in this country right now has been made for political reasons, not based on scientific evidence,” is an extraordinary statement that cannot be substantiated. Similarly, to claim that “Back when I was in grad school, … one of the potential jobs was working for government on policy. That’s no longer the case.” will come as a surprise to the graduates of schools of public policy that have recently expanded across the country.

    Perhaps most importantly, the article fails to grapple with the fact that courts are lousy at processing and understanding social science evidence. A number of studies in the U.S. and Canada have demonstrated this. INSITE may be the exception to the rule.

  2. Gayle MacDonald / December 6, 2011 at 15:28

    Response to Patrick Fafard: I found your responses to the article curious! I was interested in your comments that the article in which I was quoted had “broad claims that are themselves dubious and for which no evidence is provided” in reference to my comment that “the vast majority of policy in this country right now has been made for political reasons, not based on scientific evidence” …”is an extraordinary statement that cannot be substantiated”…I would challenge you to find me ONE policy that has been based on scientific evidence RATHER than political reasons! My claim echoes a similar claim made by the former MP Andy Scott, who has now devised a method here in New Brunswick to rejuvenate bureaucracies’ lack of evidence-basis for policy-making, namely, the New Brunswick Social Policy Network, which links academics with government to redress the deplorable paucity of research/researchers in government anywhere these days. Further, when I was in graduate school, academic education in and of itself was the requisite for policy jobs in government, not the professionalization which is now known as “policy studies”. Policy studies was something one did when one WORKED for government and was hardly considered an academic field, which it has now become…not unlike many applied, professional degrees which have been a response, rather than antecedent, to the dearth of academic evidence in policy and in governments, generally. In my field, the only true response to lack of research in government used to be the Law Reform Commission, which was sacked and then reborn under a far smaller, although still useful, mandate…which is now also gone. Are you saying that policy studies’ graduates are mainly involved in research? I think not. Further, I found your claim that the courts are “lousy at processing and understanding social science evidence”in your own words “an extraordinary statement that cannot be substantiated”. Bedford is proof that courts DO understand social science research, and have for quite some time. In my experience, it is governments that do not understand social research, not the courts.

  3. Patrick Fafard / December 12, 2011 at 17:53

    Gayle MacDonald writes: “I would challenge you to find me ONE policy that has been based on scientific evidence RATHER than political reasons!”

    Answer: Full day kindergarten in Ontario

    http://www.ontario.ca/en/initiatives/early_learning/ONT06_018869.html