Law and Risk Legal Dimensions Series This series stems from an annual legal and sociolegal research initiative sponsored by the Canadian Association of Law Teachers, the Canadian Law and Society Association, the Council of Canadian Law Deans, and the Law Commission of Canada. Volumes in this series examine various issues of law reform from a multidisciplinary perspective. The series seeks to advance our knowledge about law and society through the analysis of fundamental aspects of law. The essays in this volume were selected by representatives from each partner association: Pierre Noreau (Canadian Law and Society Association), France Houle and Philip Girard (Canadian Association of Law Teachers), Serge Rousselle (Council of Canadian Law Deans), and Lorraine Pelot and Nathalie Des Rosiers (Law Commission of Canada). 1 Personal Relationships of Dependence and Interdependence in Law 2 New Perspectives on the Public-Private Divide 3 What Is a Crime? Defining Criminal Conduct in Contemporary Society 4 Law and Risk Edited by the Law Commission of Canada Law and Risk © UBC Press 2005 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without prior written permission of the publisher, or, in Canada, in the case of photocopying or other reprographic copying, a licence from Access Copyright (Canadian Copyright Licensing Agency), www.accesscopyright.ca. 15 14 13 12 11 10 09 08 07 06 05 5 4 3 2 1 Printed in Canada on acid-free paper Library and Archives Canada Cataloguing in Publication Law and risk / edited by the Law Commission of Canada. (Legal dimensions series, ISSN 1701-2317) Includes bibliographical references and index. ISBN 0-7748-1191-9 1. Law – Canada. 2. Risk assessment – Canada. 3. Risk management – Canada. 4. Risk communication – Canada. I. Law Commission of Canada. II. Series. K487. R48L39 2005 349.71 C2005-902174-8 UBC Press gratefully acknowledges the financial support for our publishing program of the Government of Canada through the Book Publishing Industry Development Program (BPIDP), and of the Canada Council for the Arts, and the British Columbia Arts Council. UBC Press The University of British Columbia 2029 West Mall Vancouver, BC V6T 1Z2 604-822-5959 / Fax: 604-822-6083 www.ubcpress.ca Contents Preface / vii 1 On Proof and Probability: Introduction to “Law and Risk” / 1 William Leiss and Steve E. Hrudey 2 Use of Risk Assessments by Canadian Judges in the Determination of Dangerous and Long-Term Offender Status, 1997-2002 / 20 David MacAlister 3 Shifting the Burden of Proof: The Precautionary Principle and Its Potential for the “Democratization” of Risk / 50 Dayna Nadine Scott 4 Legal Knowledges of Risks / 86 Mariana Valverde, Ron Levi, and Dawn Moore 5 Evidentiary Principles with Respect to Judicial Review of Constitutionality: A Risk Management Perspective / 121 Danielle Pinard 6 Integrating Values in Risk Analysis of Biomedical Research: The Case for Regulatory and Law Reform / 156 Duff R. Waring and Trudo Lemmens Contributors / 201 Index / 203 Preface Contracts manage risks of non-performance. Regulations manage perceived risks to the health and safety of citizens. Sentencing principles aim to man- age the risks of recidivism or violence. Law is often about managing risk. In Chapter 1, William Leiss and Steve E. Hrudey suggest that the “bond between law and risk becomes tighter over time.” Indeed, risk assessment has become part of decision making in many areas of law. This collection of essays examines, through a multidisciplinary approach, the connections be- tween law and risk. The study of risk assessment and risk management provokes a great deal of debate and these essays are no less controversial. Three of the essays (Chapters 2, 3, and 6) cover the hotly debated issues of the use of the pre- cautionary principle, the role and regulation of research ethics boards, and determination of the likelihood of re-offence. The two other chapters (Chap- ters 4 and 5) use a number of examples, including social assistance, child pornography, marijuana possession, and Megan’s Law to examine the legal system’s use of facts and risk knowledges. The study of evidentiary prin- ciples and constitutionality examines the uncertainty involved in “objec- tive” judicial determinations, while the other demonstrates the dynamic interaction that exists between the science of risk and legal networks. The interplay between law and risk covers many domains and involves many actors: judges, policy makers, police officers, and even citizens who are often asked to judge or participate in the calculation of risk. This book illustrates the complex links that exist between law and risk and how law reform in this area could address a number of different issues: control over information, access to knowledge by experts and non-experts, power im- balances in the ability to bear risks and participate in their evaluation, and the need for transparency and legitimacy in decision making. The law is often called upon to provide some certainty, whether this in- volves allocating responsibility for a risk or determining the extent of repa- rations where the full extent of the damages is unknown. A priori risk viii Preface management through laws or regulations provides greater certainty and objectivity. However, once engaged in legal interpretation or determina- tion of risk a posteriori, interested parties become subject to many of the same uncertainties and subjectivities that arise in the scientific arena. Some- times these uncertainties are obscured by language rooted in the premise of objective decision making. In a legal arena, which is very dependent on a high degree of certainty and premised on objectivity, a number of challenges arise. Rules and tradi- tions that have long determined the flow of information face challenges due to an increasing complexity of facts and a plethora of expertise. One might say that regulation and adjudication, which are the preventive and remedial aspects of law, are becoming riskier endeavours as decision makers rely on experts armed with conflicting information. Along with the uncer- tainty comes a greater degree of subjectivity in choosing between options. Greater demands for accountability through the revelation of underlying facts, values, assumptions, and subjective aspects of decision making may require reforms to practices governing the sources and flow of information. The law reform questions are numerous: Are the concepts used in law to manage risks still relevant? Do they raise new issues of institutional compe- tence or new challenges to our democratic values? Are our legal concepts and institutional mechanisms adaptable to new scientific and social reali- ties? A consideration of law and risk requires us to attempt to reconcile scientific knowledge and democratic principles, individual behaviour and collective fears, and concepts of efficiency and equality. It is one of the core elements of law reform in our society. This collection is the result of a partnership between the Council of Ca- nadian Law Deans, the Canadian Association of Law Teachers, the Cana- dian Law and Society Association, and the Law Commission of Canada. Through the Legal Dimensions initiative, we seek to stimulate critical think- ing on emerging law and society issues. The Law Commission of Canada wants to thank its partners, the authors of the essays, the guest commenta- tors William Leiss and Steve E. Hrudey, and the participants of the Legal Dimensions workshop that was held in Halifax in June 2003. The Law Com- mission of Canada hopes that this collection of essays will further discus- sions on the many facets of law and risk. Law and Risk 1 On Proof and Probability: Introduction to “Law and Risk” William Leiss and Steve E. Hrudey Law and the Management of Risk The public policy disciplines of law, on the one hand, and risk manage- ment, on the other, come together in their reliance on two key modes of reasoning: proof and probability. Attribution of blame under our system of justice requires proof of culpability, either on balance of probabilities or be- yond reasonable doubt. And the management of health and environmental risks – where risk is the probability of encountering adverse consequences under specified conditions – is governed by a requirement for evidence of possible harm that by definition can be represented only as a range of prob- abilities. Both disciplines have no choice but to live with uncertainties, even though, in both, the consequences of erroneous decisions can be (and some- times are) catastrophic. Precaution is the balm that both seek to apply in order to forestall the worst forms of error, but the practitioners in both domains know full well that some mistakes will happen no matter how large a dollop of precaution has been applied. As modern society matures, the bond between law and risk becomes tighter over time.1 In the penal system, for example, formal risk-based instruments of assessment are devised in order to assist judges in evaluating the “likeli- hood of re-offence.” In social-policy jurisprudence, in cases such as posses- sion of child pornography or the marketing of a hazardous substance (tobacco), judges must assess whether certain probabilities of harm (serving as a proxy for an inherently unprovable cause-effect nexus) are sufficient grounds for restrictions on the freedom of expression that are “reasonable” in terms of the Canadian Charter of Rights and Freedoms.2 At the same time, risk management practitioners are challenged to answer hard questions about the “burden of proof” where possible harms may occur, because some uncertainties cannot be resolved until long after actual harms occur. In occupational risk, for example, the traditional approach involved “waiting for the body count” – the scientific calculus of association between cause and effect, uncovered through painstaking epidemiological analysis 2 William Leiss and Steve E. Hrudey of mortality and morbidity records.