| Abstrakt: |
Social science evidence is the "new normal" in Charter litigation in Canada. Yet, the road is not smooth for the use of social science evidence in courts. How to effectively use such evidence remains an under-studied area. This paper explores the dynamics, strategies, and best practices associated with adducing such evidence, using a qualitative, comparative perspective and examining cases from Canada, the United States, and South Africa. The paper argues that there are clear lessons emerging, in Canada and elsewhere, for how to effectively use social science evidence in constitutional cases. By analyzing scholarship and case studies in this area, the paper unpacks some of the dynamics and strategies at play for using social science evidence in courts. It puts forward five lessons, explaining that counsel who wish to harness social science evidence in Charter litigation should: (1) employ a group approach to constitutional litigation that brings together affected persons, community organizations, academics, and other experts; (2) present social science evidence early on in litigation and with the most reliable experts available; (3) ensure that social science evidence will withstand scrutiny under the applicable rules of evidence; (4) consider alternative strategies where social science evidence is weak, contested, or complex; and (5) prepare for a future where the importance of social science evidence in Charter cases increases. [ABSTRACT FROM AUTHOR] |
