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Evidence - Social Science. Fair Voting BC v. Canada (Attorney General)
In Fair Voting BC v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal dismisses (IMHO harshly) a Charter s.3 ['democratic rights'] and s.15 ['discrimination'] challenge to the federal electoral system.
Here the court considers the appropriateness of social science evidence in this electoral context:The nature and relevance of the expert evidence
[19] As noted above, this application involves a voluminous record with considerable expert evidence proffered by academics, chiefly by those who study politics. Great care is required in assessing such evidence. Social science evidence may have an empirical dimension, but unlike natural science evidence it is not inherently oriented to discovering the objective truth of some matter under investigation. Not all academic disciplines can be evaluated on the same metrics, and not all research has the same methodology or even the same purpose.
[20] Social science research is concerned with human behaviour and typically has a significant normative dimension: research is often a matter of assessing arguments for competing proposals, using contested criteria. Often, what appears to be disinterested conceptual or empirical analysis is better understood as the marshalling of facts and arguments to create a case for a policy change favoured by the author. Evidence that is the product of such research must be assessed with an awareness of the researcher’s objectives, and in the knowledge that there is considerable disagreement – reasonable disagreement – amongst social science experts on everything from causation to policy preferences. All of this is to say that the policy recommendations of those within the academic community must be evaluated by the soundness of their observations and arguments, and not by the sheer fact of their academic credentials. Academic views are not entitled, a priori, to priority over anyone else’s.
[21] Although the application judge acknowledges that the question for the court is not whether the SMP electoral system is optimal according to some set of criteria fashioned by the experts, or whether a PR system would be preferable on some or other basis, he discusses these questions in considerable detail and at several points in his decision comments favourably on PR. There are many variants of PR, however, and it is misleading to talk about PR in the abstract. For example, PR systems may involve the appointment of members to the legislature from lists of candidates compiled by political parties, with seats apportioned having regard to a party’s share of the party vote, as opposed to the votes cast for individual candidates. PR systems may establish minimum vote percentage thresholds that must be reached by a party before any of its members are appointed. PR systems may involve the direct election of members to the legislature as well as the appointment of members from party lists. And so on. The many possible variations of PR preclude generalized judgments about its operation. With respect, the application judge’s comment that the appellants “have shown that PR would be a fair system” is insufficiently attentive to these nuances and is inapt. It is also irrelevant to the questions before him.
[22] These sorts of comments stray beyond the realm of legal analysis into policy analysis. The court is legitimately concerned only with the question whether the federal electoral system we have violates the Charter. Opinion evidence from academic experts as to the operation and potential benefits of a PR electoral system we do not have is not relevant to answering that question.
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