The British Columbia Supreme Court’s recent ruling in British Columbia Civil Liberties Association v Canada (Attorney General) 1 (“BCCLA”) raises several important issues relating to access to justice and evidence for s. 15 Charter 2 claimants. The claimants in BCCLA contended that ss. 31-33 and 37 of the Corrections and Conditional Release Act, authorizing administrative segregation (“solitary confinement”) was contrary to s. 15 of the Charter to the extent that it imposed a discriminatory burden on Indigenous inmates and inmates with mental illness.3 The claimants adduced a total of 18 witnesses, which included 10 experts on various subject matters relating to the practice and effects of solitary confinement, as well as 8 lay witnesses who were primarily former Correctional Service of Canada employees and inmates who had experienced solitary confinement.4 With the help of the John Howard Society of Canada and interveners from West Coast Women’s Legal Education and Action Fund and the Criminal Defence Advocacy Society, Leask J. was provided with what he described as, “ . . . a substantial evidentiary record,” to assist his adjudication.5
The amount evidence adduced in BCCLA stands in stark contrast with Kahkewistahaw First Nation v. Taypotat 6 (“Taypotat”), a 2015 Supreme Court of Canada (“SCC”) decision that also dealt with s.15. Taypotat involved a challenge to a minimum education level requirement imposed by the Kahkewistahaw First Nation Election Code for Indigenous people seeking certain leadership positions in their community.
The crux of the analysis turned on the SCC’s perceived absence of evidence that the educational requirement had a differential impact on a group identified by an enumerated or analogous ground. The claimant did not provide the Court with expert or lay opinion evidence, and only adduced two pieces of statistical evidence. The first was data from the 2006 Canadian census relating to the correlation between age and education. The second was aggregate educational data from a CD Howe Report dealing with Aboriginal people across Canada.7 The SCC ultimately found that both sources were too broad to draw an inference regarding the relationship between age and education in the specific context of the members of the Kahkewistahaw.8
Writing for a unanimous Court, Abella J. found that, “[s]tatistical evidence is not always required to establish that a facially neutral law infringes s. 15”, noting that, “[i]n some cases, the disparate impact on an enumerated or analogous group will be apparent and immediate”.9 Abella J. concluded however that “[w]hile the evidentiary burden need not be onerous, the evidence must amount to more than a web of instinct [emphasis added].”10 The SCC did not clarify what this threshold requires.
While it remains unclear what the 'above a web of instinct' evidentiary threshold precisely requires, it is clear that in BCCLA Leask J. was satisfied that the evidence adduced by the claimants met this threshold. Unlike in Taypotat, the claimants in BCCLA drew extensively on statistical evidence. They used data from annual reports of the Office of the Correctional Investigator to help demonstrate some the ways in which solitary confinement triggers and exacerbates mental health conditions, and increases risks of self-harm and suicide.11
The claimants also adduced expert opinion evidence to clarify and elaborate on various findings of these reports.12 For instance, they called Dr. Craig Haney to give expert opinion evidence that mentally ill inmates are more vulnerable to stressful, and traumatic conditions, and that some of the conditions of isolation exacerbate the particular symptoms from which they suffer. Dr. Haney provided the Court with multiple examples of what this might look like depending on the medical condition in question.13 In total, Leask J. drew from the expert testimony of six doctors in his s. 15 analysis relating to mentally ill inmates.14
The apparent evidential discrepancy between BCCLA and Taypotat seems to be indicative of two broader issues relating to access to justice and evidence in s. 15 cases. The first issue is that statistical evidence is not always readily available to claimants. In BCCLA, the claimant was able to access data from reports of the Office of the Correctional Investigator because s. 192 of the Corrections and Conditional Release Act requires that these reports be produced annually.15 However no analogous reports relating to age and population in Kahkewistahaw Nation are required by federal law - or likely even exist.
Claimants in situations similar to Taypotat in which data is not readily available are thus faced with the unrealistic prospect of commissioning an independent study to assist the Court in drawing the inference necessary to make out their claim, or they risk not adducing any statistical evidence at all. The former option can be particularly problematic given that s. 15 claimants are often by the very nature of the Charter right in question socioeconomically disadvantaged. The latter option, while not fatal, might severely impede their chances at succeeding in their claim.
This leads to the second issue: the ' above a web of instinct' evidentiary threshold articulated by the SCC in Taypotat is unclear; and as BCCLA suggests, claimants thus tend to overcompensate by adducing an excessive amount of evidence. The “substantial evidentiary record” produced in BCCLA was the product of several powerful legal aid NGOs and interveners. These organizations have the resources available to research and retain multiple experts and laypersons to provide the Court with opinion evidence.
But as cases like Taypotat highlight, s. 15 claimants do not always have the luxury of NGOs assisting or intervening in their case. Nor should the onus fall on these organizations to ensure claimants can access their Charter rights. It seems that BCCLA reflects a broader trend in s. 15 jurisprudence where the sheer amount of evidence adduced by the claimant is staggering. And while this certainly can strengthen the claimant’s argument, it also perpetuates an evidentiary norm that future disadvantaged claimants may be unable to meet. In this sense, BCCLA contributes to an expanding evidentiary web that, as was the case in Taypotat, continues to catch and block some less fortunate claimants from asserting their s. 15 rights.
TABLE OF AUTHORITIES
British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCSC 62.
Kahkewistahaw First Nation v Taypotat, 2015 SCC 30,  2 SCR 548.
Corrections and Conditional Release Act, SC 1992, c 20.
1 British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCSC 62 [BCCLA].
2 Under the heading of “Equality Rights”, section 15. (1) of the Canadian Charter of Rights and Freedoms states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” S. 15. (2) states: “Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
3 BCCLA, supra note 1 at para 545.
4 Ibid at para 9.
5 Ibid at para 8.
6 Kahkewistahaw First Nation v Taypotat, 2015 SCC 30,  2 SCR 548 [Taypotat].
7 Taypotat, supra note 6 at paras 30 – 32.
8 Ibid at para 34.
9 Ibid at para 33.
10 Ibid at para 34.
11 Ibid at para 494.
12 Ibid at paras 497 – 498.
13 Ibid at para 497.
14 Ibid at paras 491 – 523.
15 Corrections and Conditional Release Act, SC 1992, c 20, s 192.