Expert-Tease: Advocacy, Ideology and Experience in Bedford and Bill C-36

It is no secret that our current government is skeptical of academic experts and their opinions on policy choices.¹ The Bedford case and the passage of Bill C-36 (The Protection of Communities and Exploited Persons Act) offer a window into the identification, mobilization, and reception of “experts” in the courts, the legislative process, and the public sphere. My purpose is to direct thought toward how the mobilization of expertise works in legal arguments and the relative narrowness of a test case “win.” In this case, expertise about sex work and harm was offered to make a crucial legal point in the Bedford challenge. That expertise was accepted and formed the basis of the legal victory. But when the government drafted Bill C-36 and began Parliamentary hearings, both the legal questions and the political context shifted. In the new landscape, no expert could stop the unanimous Supreme Court “win” from turning into a crystal clear loss.

The particular strategy employed in the Bedford challenge was heavily dependent on the written word of experts rather than in-court testimony. The trial judge, Justice Susan Himel, faced 25,000 pages of evidence in 88 volumes. The evidentiary rules applied to the admission of expert evidence stipulate that the role of an expert is to “assist the court” and that experts “should never assume the role of an advocate.” This language should give any careful scholar serious pause. It reveals the strict limits of the frame in which the law seeks and receives expertise—a frame in which a whole truth is possible and the limits of the “whole” are ascertainable. The specific legal question raised in the case was, “Do the three challenged positions violate section 7 of the Charter by infringing the life and security of the person of sex workers contrary to the principles of fundamental justice?” and not, “Can and should the government ban prostitution?” Both inside and outside the legal arena, a variety of academic and non-academic expertise was displayed and mobilized, including a sizable body of experiential expertise from current and former sex trade workers on both sides of the debate. I have no doubt that the voice of experience is critical. This is one of the central contributions of feminism to academic research, listening to the voices of women who have experienced the phenomena we are studying. But in this case, those voices revealed a wide range of contexts in which sex work is performed, and a wide range of reactions and conclusions based on that experience. Himel J. called the evidence of eight sex workers (for the applicants) and nine prostitutes or former prostitutes (for the respondents) a wash: “[I]t is clear that there is no one person who can be said to be representative of prostitutes in Canada; the affiants are an extremely diverse group of people whose reasons for entry into prostitution, lifestyles and experiences differ.”² Himel J. did find that the academic experts supporting the legal challenge had presented the better evidence, evidence that the law itself was leading to harm in a way that violated section 7 of the Charter. Many of those on the other side, and especially those who presented the international and comparative evidence, she said, had “entered the realm of advocacy and had given evidence in a manner that was designed to persuade rather than assist. … it is natural for persons immersed in a field of study to begin to take positions as a result of their research over time, [but] where these witnesses act primarily as advocates, their opinions are of lesser value to the court.”³

So the claimants won, a victory that largely stood up at the Supreme Court. But what was won? The timing of the Supreme Court decision meant it met up with four specific contemporary realities: (1) a government that has consistently foregrounded a law and order agenda, (2) a growing sense among the government and its supporters that the Supreme Court of Canada is ideologically opposed to this government and is politically motivated when it blocks government efforts...