Social science evidence plays an increasingly important role in contentious constitutional litigation. This paper examines the competence of courts to examine these materials in spite of both time- and finance-based pressures. Rather than critique the judiciary’s ability to examine social science evidence, this article seeks to determine what judicial structure is best placed to examine these materials in contentious cases (particularly focusing on reference cases). Trial courts are determined to best address resource concerns, and are best able to handle expert evidence and social science data. Examination of three recent contentious constitutional cases confirms that they are able to weigh the latter materials well. They should thus be the court of first instance in contentious constitutional law references.
Michael Da Silva, "Trial Level References: In Defence of a New Presumption", online: (2012) 2:2 UWO J Leg Stud 4 <http://ir.lib.uwo.ca/uwojls/vol2/iss2/4>.