Social Science Evidence in Constitutional Rights Cases in Germany and Canada: Some Comparative Observations

Abstract

In this paper we compare Canadian courts’ approach to social science evidence with that of the German Constitutional Court. After describing the Canadian approach in constitutional rights cases, we provide some background on the German Constitutional Court and its use of social science evidence. We then undertake two German case studies. We examine the First and Second Abortion decisions, which show the difference in approach to constitutional review occurring at the time that legislation is first introduced versus when a law has been in place for some time, as well as a series of decisions challenging various aspects of the Transsexual Law, which deal with evolving social scientific knowledge. We go on to consider whether the Supreme Court of Canada’s current approach to social science evidence could be improved upon by engaging with the German comparator in three areas: the process for receiving and evaluating social science evidence; dealing with changes in the state of the science or the emergence of new bodies of scientific knowledge; and the role of deference as it relates to social science evidence. We conclude that some guidance on these issues might be found in the German jurisprudence.

Keywords: Canadian Charter of Rights and Freedoms, German Basic Law, Supreme Court of Canada, German Constitutional Court, social science evidence, deference