 Welcome. If you haven't got coffee or cookies, you should. They're not going to last forever. My name's Benjamin Perryman and I'm one of the shuluk. I can't hear me. Even with my lecture voice, you can't hear me at the back. I can use the mic, but then I can't wander around. Can you hear me at the back? No? Okay. Is that better? Okay. That's unfortunate. Yeah, tethered to the mic. I'm one of the shuluk fellows here at the shuluk school of law and I teach contract law here. And I'm also a doctoral candidate at Yale Law School where I'm studying happiness and constitutional law, which is the subject of my talk tonight. It's a pleasure to be here and I'm happy to see so many friendly faces in the audience. I'm going to talk tonight for about 45 minutes and then leave 45 minutes for questions afterward. You're here for the talk. I'm here for the questions, primarily. And so I hope to pique your interest enough to provoke some conversation after the talk. But before I proceed, I just want to give a disclaimer. My research is quite multidisciplinary. It touches on philosophy, economics, psychology, neuroscience. I'm not any of these things. There's a good chance that there's people in the audience that know way more about these topics than me and I would encourage you to interject or save your questions till the end to keep me honest or to push back if you think I've gone too far. But regardless of your background, it should be obvious as I go through my talk that I'm quite interested in your subjective perspective on happiness that I think that's very important. And so I would encourage you, though I'm not going to employ the Socratic Method, to share that in the conversation that follows. So my talk is going to proceed in three parts. The first part is a discussion about the purpose of law, quite abstract. The second part will be an explanation of what some have called the science of happiness. This is this emerging body of social science research out of the fields I just mentioned. And then the last part is going to be a discussion of how we might take this information from the science of happiness and apply it to constitutional cases. So my ultimate claim tonight and what I'll argue is that the fundamental purpose of law is to create the type of society that we want to live in. And from my perspective, that type of society is a happy society. It's a society where the needs and aspirations of all persons find recognition and protection in the law, especially those persons who are most marginalized. And if that's correct, then this emerging research on what makes humans happy or unhappy ought to be incorporated into legal decision-making. So part one, what is the purpose of law? This might seem like an easy question to answer. It's not. Much ink spilled on this question. But I just want to start with this guiding legal maxim around which I think there is wide support. That all law is created for the benefit of human beings. There's been some expansion of this idea recently to include other sentient beings, but I think it still holds that the purpose of law is for the benefit of human beings. It's created by human beings for human beings. How do we know then whether or not the law is actually achieving this benefit? So what I'd like to give is a very selective and one-slide rendition of 225 years of legal thought. Because this notion that happiness and law are linked or ought to be linked is not new. And if you go back in time to the late 18th century, you'll find thinkers that thought the two concepts were closely linked. The first person I'll go to is this fellow named Jeremy Bentham who's a bit of an odd duck. He was a lawyer and he's one of the most influential legal theorists of our time. But he didn't want to be a lawyer. He was dragged, kicking and screaming into the law by his father. What he really wanted to do was to become a scientist and instead he became a lawyer. Throughout his career he was not a successful lawyer but he was a successful legal thinker. And his concern or his hate for law and lawyers was that we have a tendency to use words, symbols, and have the ability to move them around to suit our client's interests in ways that might not comport with justice but can be very convincing to the right ears. He called this the tyranny of words. And his concern was that a lot of words lawyers use are not actually for the benefit of all humans but are in fact for the benefit of their clients to the detriment of others. He developed this idea that we should have some type of metric to know when a law is for the benefit of the general public and when it is not and he keyed in on these notions of pleasure and pain that he says nature has placed humankind under the governance of two sovereign masters, pain and pleasure and argued that we should evaluate laws and their benefit on their ability to maximize pleasure for the greatest number of people and minimize pain. Around the same time the Declaration of Independence in the US was signed and it said that all men are created equal, they are endowed by their creator with certain unalienable rights that among these are life liberty and the pursuit of happiness. This led Jefferson to say from his perspective, the only orthodox object of the institution of government is to secure the greatest degree of happiness possible to the general mass of those associated under it. And yet 225 years later this is not how we think of government nor how we generally think of law. But this idea that happiness is linked to law hasn't completely disappeared. And what I found interesting in reading Pierre Elliott Trudeau's memoirs is what he thought the purpose of constitutional law was. In talking about the Charter he said the subject of law must be the individual human being. The law must permit the individual to fulfill himself or herself to the utmost. That was what Pierre Trudeau thought the Charter was supposed to do. That's not where legal thought has gone. So I would submit that the two main objectives in Canadian law, if we were to look for some theory that ties Canadian cases together, it's two objectives, wealth maximization and human rights. And that some combination of these two objectives is what most Canadian lingo thinkers would tell you amounts to justice. The wealth maximization part takes off in conjunction with our move to capitalism, to global capitalism. It comes as part of this rejection of Bentham's work that we have no ability to actually measure what makes people happy until recently. And so we should be looking for something else to quantify the benefit. And that something else is wealth. At the same time in the post-World War II environment, both domestically and internationally, we see the spread of human rights. And while there may be some pushback to wealth maximization today, human rights are almost sacrosanct. Come in, there are seats back there, down here, grab a coffee, grab a cookie. I don't have a problem of either wealth maximization or human rights as goals of the legal system. I think they are both worthy goals. My complaint or my critique tonight is how law is interpreted and applied in the name of wealth and human rights. So one of these tensions that we always have is should we evaluate the law based on how it's written or how it's interpreted, applied and experienced? Some will say that you should evaluate law as it's written, that you need not be concerned with its interpretation and application, that we try to get the law as good as it can be and that we're not concerned necessarily with the interpretation or application process. I tend to fall into this second camp that you can't evaluate law without also asking what is the economic, political and social environment in which law operates? What might be a good law on paper can be a bad law in practice, both from the perspective of whether it actually achieves what it's intended to do and from the perspective of whether it has unintended consequences on certain elements of society. There's been this push recently within the legal industry at least to expand access to justice. It's a reality that most Canadians cannot afford and have no access to a lawyer unless you're exceptionally wealthy or exceptionally poor. But if you ask people what access to justice means to them, many people will respond that it's something more than getting into court. It's not just that you have a day in court to make your point. It's about whether or not the law creates this type of society in which we want to live. Part of the reason why it often doesn't, especially for certain marginal groups, is something that Roberto Unger, who's a Brazilian now-politician former Harvard law prof, calls rationalizing legal analysis. His argument is that law as it's practiced by lawyers and law as it's taught in law schools has one main purpose and that purpose is to rationalize the status quo. The very essence of law is to inhibit change and is to find principled reasons to explain what currently exists without questioning whether or not there's some ideological structure already present in the law. This rationalization is in part a product of the fact that we use precedent in the common law system so we're bound by previous rules. It's also a product of the position that lawyers and judges believe they should hold in society, which is not necessarily as change agents. I would suggest a product of the character traits of the folks that go into law, some of whom are quite creative, others of whom are less so. What this means is that when the law changes, if the law changes and often it doesn't, the pace of change is glacial and the amount the law is prepared to move is minuscule. I think the last aspect of how do we evaluate law is this question of from whose eyes should we evaluate law? If we're going to say that law should be evaluated based on how it's interpreted and applied and experienced from whose perspective. So we used to believe with a straight face that law was not made through anybody's eyes, that it was in fact merely the inevitable conclusion of reason. This is obviously false and we now accept that common law judges make law and that lawyers participate in the making of law. Lord Reed of the United Kingdom Supreme Court once said, there was a time when it was thought almost indecent to suggest that judges make law. They only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin's cave there is hidden the common law in all its splendor and that on a judge's appointment there descends on him or her knowledge of the magic words open sesame. Bad decisions are given when the judge has muddled the password and the wrong door is open but we do not believe in fairy tales anymore. So we must accept the fact that for better or worse judges do make law and tackle the question how do they approach their task and how should they approach that task. And so this raises the question of when a judge is applying a law and who's perspective are they considering a right? From their perspective? From the people who created the Constitution's perspective? From Parliament's perspective? From the majority of society's perspective? From elites within society's perspective? From a minority group's perspective? Or often as many law students will tell you from this mythical, reasonable person's perspective? But what is reasonable and what is the correct perspective can mean different things to different people? And this quote stems out of after the riots in Ferguson it's an op-ed by the deans of Harvard Law School and Yale Law School who argue that law establishes legitimacy through procedures that are open and fair. Legal procedures create accountability for those who wield power but the important part we ought to determine the law's legitimacy at least in part from the perspective of those who suffer its coercion. And this is where my research attempts to come in or where the thinking that I'm doing attempts to come in which is if a judge wants to consider law from the perspective of those who suffer its coercion where are they going to get information that can help them with that process? Hold on to that thought as we flip to happiness. What is happiness? How is it measured? We seem to know it when we see it. This image brings a lot of happiness to me. I associate it with happiness. It might not for you but how can we measure that in a meaningful way such that we could provide useful information to a judge on the perspective of another group or person that he or she has no reference or knowledge of. There's three main ways that happiness has been conceived. Hedonism, the work by Aristotle and this notion of informed desire theory. There's others I'm skipping through them. The hedonistic conception is this I feel good idea right now. I'm quite pleased. I'm not suffering pain. I've got a lot of my family and friendly faces in this room and I feel pretty good. I just had a cookie. And I like cookies and so I'm happy. The second conception of happiness is more complex. Under this conception happiness is not even a moment-by-moment state. It's more of an end goal. It's an objective for life. It's this idea that when I look back at the end of my life I want to look back and say that I flourished, that I maximized what I was capable of but crucially that I did it in a virtuous way. And what's interesting to contrast from the first two is that the second one has this notion of externally derived definition of what is acceptable behavior to produce happiness. Whereas the hedonism one is just what happens to make you happy in the moment. The flourishing one comes with a constraint and that is that there is certain behavior that you should not derive happiness from. So the object is to flourish and be happy when you look back at your life but to do so with virtue. And then the last conception is this idea of informed desire theory where armed with full information and rational decision making you make a decision of what you want and you get it either in the short term or the long term. I don't spend, to be honest, too much time thinking about these conceptions in my work. I actually think that most people have some combination of the three. Some people will be more heavily weighted towards hedonism depending on their age or personality. Other people will be more interested in informed desire while other people will be more concerned with virtue and flourishing in the eyes of others. What's been fascinating about this research is that some of those conceptions fall away when you begin to ask people themselves what makes them happy. So rather than providing the definition, just asking them. This initially merges in the field of economics. So following Bentham, this idea of how do you measure utility or utility often substituting for happiness and economics developed this concept of decision utility that we measure utility by watching what people purchase and then if you're willing to spend $5 for that cookie it must have given you $5 of utility. This has been the dominant approach to measuring utility until very recently. This idea that people will reveal their preferences by their purchasing decisions. One of the problems with this approach is that people are not always rational. So there's many situations where people will do things that don't actually make them feel good and yet they're still buying the gambling ticket even though they have an addiction to gambling. So the revealed preference will say, that person derives $5 of utility from that purchase of the gambling ticket. In reality they're addicted to gambling and this is not good for them either in the short term or in the long term. So in the 1970s we get some pushback against decision utility and some proponents who say, maybe we should just ask people how happy they are rather than trying to use dollars to capture what they're feeling. This spawns this field called behavioral economics at least in part. Or I should say it's an extension of behavioral economics and occurs at the same time that this subfield of positive psychology is emerging which says we should examine the human mind based on the traits of happy people rather than the traits of unhappy people in its most simple form. From this we've developed three ways or three methods for measuring experienced utility all involve asking people to tell you how happy are you right now. So the first, the most original was life satisfaction surveys and these say just what that question says taken all together how do you say things are these days very happy, pretty happy or not too happy. You have a variety of ways of phrasing this question you can say rank it on a zero to ten basis you can ask them multiple questions we've been doing this for about 60 years I obviously haven't been doing this for 60 years but it's been done for 60 years in a variety of countries and we now have a pretty rich body of information on these surveys The problem is that it asks people to look backwards and look forwards in assessing how happy are you these days and the psychological literature tells us that people are notoriously bad at looking back and looking forward what they're actually good at doing is telling you how happy or content they are in the current moment and to get at this this experience sampling method was developed originally this was very expensive so it wasn't used very often and this would be you hang a portable electronic device around your neck and you say how happy are you now what are you doing, how happy are you now what are you doing and you would do this all day long I'm annoyed with this device right now more and more information is being gleaned this way so anybody that has a Fitbit or running app on their phone or any other variety of electronic information where it says how was that run today Ben was it awful, okay, really good and where were you running and for how long and then it also knows my age and my weight and where I was from this we're getting a rich body of data both privately and publicly of what makes people happy in particular moments and the third was a way that tried to split the two which was to ask people to reflect in a journal at the end of the day on what made them happy and I think the key thing to note is that the science of happiness then attempts to verify so how do I know that you're as happy as you say you are you could be lying or you could be misled and so they look for verification in a variety of ways so they'll ask third parties there's good information to suggest that intimate partners will say that Ben is, I would say Ben's a 7 right now that often corresponds with what the actual respondent will say so that's one the second is that with the advent of neurological imaging which wasn't around so prior to very recently people either had to lose part of their brain deliberately or by accident for us to discover what was going on so they lost that part of the brain and then we could say oh that part of the brain governs this task now with MRIs we can literally capture images of somebody's brain when they're receiving a reward buying a lottery ticket losing something any task that you can do within the machine I can get an image of what's going on in your brain so we can verify whether or not people's responses are consistent with brain activity to some degree and then the third way that these responses are checked is through physiological indicators so things that we might widely agree are indicators of happiness things like how often is the person smiling or how much are they smiling and the bottom line is that this research is getting pretty good at capturing people's expressed or experienced utility it doesn't yet allow us to compare to say well Ben's very happy is consistent with your very happy it doesn't answer a question like that but what it does allow us to do is we could take everybody in this room I could have done this I could have given you a clicker how happy are you right now depending on what other information you are willing to give me I could then do a statistical analysis on your income, on your sex, on your age and look to see if there's factors that are generally associated with your experienced utility some of the questions that this subjective well-being research attempts to get at are what factors are generally correlated with increases in subjective well-being the answers shouldn't shock you an adequate income a healthy body, a loving family these are the types of factors that generally hold across Canada and indeed around the world other types of questions that we could ask what events positively or negatively impact subjective well-being what is the magnitude and duration of that impact so we could try to test a particular event say a catastrophic injury or winning the lottery and then say how happy are you now you just want a million dollars and then every month I'm going to come back to you and ask you how happy are you now and see what we'd expect is that that million dollars would make somebody happier but does that last forever or does that disappear over a certain amount of time the fourth question is this idea of are we born happy or sad or can we change that over time are we stuck at a baseline of happiness or are there things that we can do to change our perspective on happiness in ways that will last and not dissipate over time I'm not going to get into this too much but there's an ongoing debate with people in both camps it does seem that there's some evidence that there's lots of evidence on the neuroplasticity of the brain which is its ability to reorganize and change over time to create new pathways and to reorganize the way it works and there's some initial evidence coming out on for example people that meditate regularly are able to change their brains in ways that are lasting whether or not that corresponds to long-term changes to their subjective well-being remains to be seen and then the final question is really the one that interests me most which is are there counter-intuitive insights that can be gained from subjective well-being research things that a judge wouldn't say a reasonable person would be aware of so if you were attempting to apply the law from the perspective of somebody else or from this perspective of the reasonable person are there things that you would miss because the way you think people operate is not actually how they operate so to give some examples or to give one example most people who suffer a catastrophic injury something like a paralyzation will return in not that long of a time period to the level of happiness that they were at pre-accident whereas most of us would think that would be the end of my world if I were to experience something like that or we would wait that level of loss very highly what actually seems to occur is a much lower impact on their subjective well-being and it seems that we often overestimate the positive impact we're going to get from something like winning the lottery and we overestimate the negative impact that we will experience from suffering an event this then has useful purposes for other areas of the law for example if I've injured you and paralyzed you this idea of pain and suffering damages that in the US has been multi-millions of dollars in Canada it's much less does this notion or could we take this actual information on how long the negative impact lasts as a way to quantify how much pain and suffering somebody's experienced my area is constitutional law so I'm mostly interested in how this area of research could be applied to constitutional cases I just want to start with three other peoples perspectives people that suffer a coercion of the law the first one comes from Desmond Cole's essay the skin I'm in I've been interrogated by police more than 50 times all because I'm black which appeared in the April edition of Toronto Life and he talks throughout the essay about his encounters with the police in Ontario and his experience of that and he says as my encounters with the police became more frequent I began to see every uniformed officer as a threat the cops stopped me anywhere they saw me particularly at night once as I was walking through the laneway behind my neighborhood pizza parlor two officers crept up on me and their cruiser don't move I whispered to myself struggling to stay calm as they got out of their vehicle when they asked me for identification I told them that was in my pocket before daring to reach for my wallet if they thought I had a weapon I was convinced that I'd end up beaten or worse I stood in the glare of the headlights trying to imagine how I might call for help if they attacked me so this is one person's perspective on how they experience the law in this case another this quote comes from the most recent person to receive assisted dying in Ontario and he says physician assisted death is a right of human dignity and I'm thankful I no longer have to live under a cloud of stigma and shame that I feel as I slowly and painfully lose control he goes on to say that his only regret is that he had to wage a court battle in his final months to fight for this right to die and he says my hope is that our government will see fit to make permanent changes in the law so that no other family will have to do this ever again and the last quote comes from somebody who's experienced chronic homelessness she says homelessness doesn't feel very good you feel frustrated and everything is totally useless because you have nothing more useless you feel more useless you become and it becomes an ongoing circle and what I'd like to suggest to you tonight is that the law can and should respond to these types of subjective experience and if you accept that the question is then how can the law respond my answer is that I think that the body of subjective well-being research that stems from the science of happiness could be used to create what I'd call an evidence-based constitutional law that is it provides a way to take people's subjective experience and apply it in courts in a way that's not arbitrary in at least three ways and I can give you the bottom line conclusion which is there's glimmers of hope in some areas and no movement whatsoever in some areas so there's three ways that we might see this information coming into a court process so the first is what does a particular constitutional right mean and this came up in the most recent case of Carter in Canada where the Supreme Court of Canada found the prohibition on physician assisted suicide as unconstitutional the court was asked or the application was that this prohibition violated people's rights to life, liberty and security of the person so this raises the question of what does a particular constitutional right mean what does the right to life, liberty and security of the person mean in dissent the Chief Justice of British Columbia said that he accepted the argument the right to life protects more than physical existence in his view the life interest is intimately connected to the way a person values his or her lived experience the point at which the meaning of life is lost when life's positive attributes are so diminished as to render life valueless is an intensely personal decision which everyone has the right to make for him or herself this is this idea that it's how each of you determine your own happiness that should receive recognition and protection in the law this part at least is completely rejected by the Supreme Court of Canada but what they do say is that there is protection to be found in the liberty and security of the person prong of section 7 of the charter and they get there by saying that what underscores liberty and security of the person is this notion of dignity and autonomy to which if you were bent them you would say you've just replaced two words with two more words which is his whole point is you've used two words to replace two other words have you really moved the ball down the field at all I would say yes they have if you then look at how do we understand the contour of human dignity one way to understand dignity is by resorting to the science of happiness research and by saying can this research help us measure what impacts dignity can we use these processes to measure dignity can we measure the change in somebody's well-being when they're in a situation where they don't know how they're going to die versus when they have control over how they're going to die is this a question to which we can answer whether or not that has a positive impact I think it is one that we can so I think that there is space there to take this social science evidence and use it to help the court define what means in particular circumstances the second place where this might arise is how do you know that you've got the most appropriate constitutional standard or test or that it's set at the right level and here I have to say I am a little bit discouraged so if you were to look at the experience of carding or stopping frisk that has been going on in the US I think there's lots of evidence to suggest that repeat minor stresses result in a commutative negative impact on people's well-being that we wouldn't normally think might occur so if you were to say I would be annoyed if the police stopped me once or twice this week doesn't answer the question of what you would feel if you were stopped 50 times in one year but this science of happiness research could answer that question in a way that is not arbitrary so rather than having one person say I'm really bothered by this experience you could actually say this is a normal way that human beings respond and it has a significant harm only Ontario has implemented protection for carding we don't know how it's going to work yet we do know that the police are going to be required to provide explanations to the people that are stopped they're going to be required to tell them that they do not have to provide their IDs they don't have to participate with them and that they can walk away they're going to be required to maintain statistics on their stops based on sex, age, race and neighborhood and to report on those statistics but what's distressing I think to me so this is a good first step I would suggest but what's distressing is that the public safety minister has said quote this is about building safer communities and I don't think anybody can put a cost or price point on that very important fundamental value of our society my problem with that is that ignores this sentiment it ignores this expression of somebody else's how they conceive of their well-being and it ignores this negative impact it turns it into a safety question rather than a question of whether or not the law is actually recognizing and protecting this person and then the final area not to end on an unhappy note but I will is this idea of determining what is a reasonable limitation of a right in a free and democratic society so as you may or may not know section one of the charter allows the government to provide a justification for a breach of somebody's rights where they can show that it's a reasonable limitation of a right in a free and democratic society and that's usually a three part test where they have to show that their law is connected with its purpose that it limits your rights to the most minimal amount that it can and that it's not a grossly disproportionate in the circumstances so I think here is another place where we might be able to actually say look we have a way to measure the negative impact or the positive impact of this law you ought to take that into consideration at least for cases like homelessness and essentially every attempt to incorporate some response to poverty those have all failed and being ignored so we see movement in some areas such as the right to die where we're using notions of well being to define what dignity means and in other areas we're not quite prepared yet to recognize people subjected to experience so I think I'll stop there and happily answer questions or criticisms maybe I will use the sporadic method yep at the back well maybe I can fix things off but starting with your major press will you get the idea that this research is scientific what's I think I said it was a social science for one so your question is how reliable is this information saying is that it's not a science and the information since it's not a science I take it you're trying to ultimately look at a situation where the results of this kind of research somehow or other can be applied to the application of the law correct okay and I guess what I'm saying first of all it's not scientific and secondly it's too broad and it would be really dangerous if you tried to listen to interpreting the law and find it so in response I would say we don't use science very much in the law when we attempt to apply concepts like the reasonable person the question is is this better than what we currently do so if you're a judge on the bench and you're attempting to say this is what the reasonable person would think this is what the reasonable person would believe this is what the reasonable person would do now this is what the law is there's no science in that determination or my attempt is can we use social science to actually understand how the people that are most affected by the law think, feel, act respond and if that information is accurate I see no reason why it cannot at least be part of the adjudication process otherwise what you're left with is nine usually white, usually old judges saying this is what the law is there's no science in that process there's no reference to other groups of people who are the people that experience the coercion of law it's just what those nine think and so if you're satisfied with constructing a legal system in a way that has nine people tell you what the law is from their perspective then we don't need to change anything that's what we currently do but if you want something more if you want to say you actually have to be able to tell me why that why this action is reasonable justified in a free and democratic society then I don't think it's unreasonable to take into consideration what we might have on how people experience the law a lot of similar you seem to be suggesting that adding science to law would create improvements and would be somehow contributing to happiness but I'm wondering if at the same time would we produce oppression and deny people their subjective happiness so particularly assessing people's claims financial rewards or compensation and perhaps creating an equation based on the science and thinking of things like residential schools and so whether or not the science itself could be oppressive by denying somebody the right to say that their their rights or happiness has been trampled on by the law in some way and that's unjust regardless of whether or not the science would actually support them there's a real the weak point or danger that's there and I agree with you is that you have to belong to a group of a certain size before there can be any information there to validate your experience that already is how the law functions if you come and you say I have this unique experience they will say but a reasonable person would not think or act that way so I think it does give some space to protect people but you're right I mean it does run the risk that if you're the first person to profess you might lose it goes back to what you said earlier in your introduction as the law being a mechanism for supporting the status quo right and so if you bring science into it as well as being a way of reinforcing the status quo I guess the two together could in some ways conspire to deny people their subjectivity happiness is really so this is probably a part where I would part ways because I think what happens currently is that if you come with that unique perspective you lose that's the end of the court case if you come armed with some amount of evidence to suggest that you belong to a group and that your perception is reasonable then you might win and I can give you a concrete example it's one I often use with people and that's of battered spouse syndrome so if you've killed your spouse in self defense the test for self defense is that you have to have an imminent risk of grievous harm or death from whose perspective do you judge that the leading case struggled because the test is normally the reasonable person and this person is saying but I perceive the threat in a different way because of my circumstances and you're absolutely right that if it's the first person with nothing else that makes that argument he or she loses however at some point with enough evidence you can say actually my response is consistent with other people's responses not everyone but enough people that I demand recognition and a legal change and at that point you might get it I don't it does mean that you have to always have some measure statistical significance in order to have an argument be weighted it does mean that you will have to belong to a group of a certain size yes before there's going to be some kind of legal bias support those people currently lose in Canadian court cases on a regular basis does this body need to validate my I think that then is a question of circumstances so it's a relatively easy case and this is the first 30 years of charter jurisprudence that I think we've gone through of where there's no battle between two people's rights it's just one person's right and you're attempting to fulfill as Elliot Trudeau said that person's right to the utmost that changes when we start to get into a situation of clashing rights which has happened more recently and at that point you do need some mechanism to say the general public's safety of not having squeegee people on the street it's their right to ask for money or their speech rights and it's at that point that I think this notion of the individual goes out the window completely I think those are the tough constitutional cases are ones that pit groups or the public as against other groups or specific groups it's not a difficult case from my perspective if there's no clash at that point then you try to maximize the right as much as you can it's what happens when there is some clash so yeah, that's the heckling section my question is about the difference between dignity and happiness these happiness is not a word of a charter nor is dignity but the courts have moved to read in this idea of dignity and the interpretation of different kinds of rights, equality rights so from your analysis of happiness you've chosen happiness as the concept that we think is the driving force what's the additional does this concept of happiness have to the existing concept of dignity that we already sort of are beginning to embrace as a way to measure right so I guess my where I'd like to see this go in the future is are there aspects of dignity that are as counter-intuitive as what the subjective well-being research has shown because I think what has been really interesting about the happiness research is that we all think humans respond one way but in actuality that's not how we respond so my curiosity is dignity like that can I say with the sufficiency required in law which is not scientific by any means but can I say that I'm certain that that person's dignity has been diminished or enhanced how long does that impact have to last do you have to say is it really annoyed by the police in the moment does it have to be a last a week does it have to last two weeks four weeks where does that how do you know that the person's dignity has been impacted enough to amount to a constitutional violation and I think for that it might be possible to use some of these methodologies to actually unpack what dignity means or if you get somebody who says my dignity looks different than your dignity then you're in a situation of whose dignity reigns at that point the majority's conception of dignity or somebody else's conception of dignity yep what I'm taking from this is that we're looking for a law to be more of or at least the implementation of law to be more of a process here is a long going conversation with almost no absolute and that if we if we accept that that for example dignity is an important legal concept and you accept that dignity means one thing for this person one thing for me and one thing for this person and that's all going to change over time then you're looking for judges to be hosts of conversations as opposed to absolute decision right it's this notion of procedural justice that what people want is and what I would like to see is actual consideration of a group's experience and either acceptance or rejection based on transparent and clear reasoning which is not necessarily something that we currently do yep why happiness and why not the stress because it seems to me that all the examples you've given are people who are under some sort of distress and as a sociologist and as engaged in some of this kind of research I think trying to measure the stress would probably be easier than trying to measure something as abstract as happiness right so some of it is governed by what if you want to do longitudinal research as you know you're governed by the questions that people have asked for the past 60 years so you're stuck with this notion of life satisfaction even if you personally would choose to rephrase the question but I think the other thing comes from the fact that I do comparative constitutional research and if you go to other countries you get this real notion that the purpose of the rights or the constitution is to build something it's not just to prevent distress it's bigger than that it's to build the type of society that we want to live in it has a dual function of enhancing and preventing the diminishment of or stress as you put it so I think the stress probably makes more sense or distress makes more sense from a Canadian context what might not make as much sense from a South African context and that's probably why I've looked for something that can explain both this positive aspect of a constitution as well as its negative protections or its negative rights yeah yes what is the difference between your argument and just expanding what we already protect or may come to protect as positive rights under say section 7 so what's the difference between your argument and just making section 7 incrementally bigger as we have done over the last 30 plus years do you want to tell me your second question too sure this is a boring one it's just practical about what the evidence would look like in a case that is applying more theory so would you have the happiness researcher provide an affidavit and be told by an expert or would you have the individual provide evidence of their own subjective well-being right so I'll answer your second question first and that's that when you look at constitutional litigation in this country you've seen a massive expansion of the record in ways that if you were just to go back you know even 15 years to say is somebody's security to the person engaged when their child's at risk of seizure by children's services it was a three paragraph affidavit and the court accepts that as sufficient evidence that yes somebody's psychology is impacted by the threat of their kids being seized if you fast forward currently the cases that win usually have 10 to 20 volumes of evidence in them good or bad so I would say you never want the individual applicant's voice removed their message should still be there but the struggle then is is this an arbitrary response that this person's complaining about or is this a non arbitrary response are you asking for constitutional law to be shaped as this person saying in a unique way or are you saying that there's more to it than that because if it's just a unique way and there's a really good public policy objective for the infringement then you're probably gonna lose so I think I think the practical answer to your question is that there would need to be expert evidence what we currently do is we ask third parties to provide that perspective doctors sociologists psychologists my complaint is that that then takes so my infringement only gets recognition if the doctor says so not if I say so not if 10 people like me say so or a thousand people like me say so it only gets recognition if this other professional mediates that message I think that's part of what I'm trying to respond to as far as the difference between positive versus negative rights it could really go both ways so you say that adding more section 7 rights wouldn't do so we have the right to die we don't yet have a right to a basic income right how could your theory work I think you want life liberty and security of the person to capture the thing the needs and aspirations that are most important to Canadians and if there are certain components that it's not capturing then it ought to that doesn't necessarily mean that they win but it has this process-based conversation where you can then begin to say is the infringement justified is the rational connection is their minimal impairment is it proportionate to the infringement that's taking place right now what happens is we say we don't even want to engage with whether or not your homelessness leads to stress which leads to early death we don't even want to hear anything about that and so we're not prepared to even have this transparent conversation about yes we accept that this social structure means you'll die early but that's okay because we live in a free and democratic society and that's justified instead we plug our ears and ignore essentially yes and that actually matters to people so there's been some really interesting so most of what I talked about tonight is about happiness and how you currently feel in response to events there's been some very interesting research on procedural justice and happiness that people actually will accept results if they feel that the process was fair has nothing to do with the results so there may be ways that you could actually orchestrate some things that we're already doing without changing that it's taking place so the police can stop you but they have to say I'm stopping you because here's the explanation and here's a card saying it and maybe that changes somebody's response but questions yep yep I can see how in some cases it's a view of this sort of bigger social context but I think it can become problematic where you have it only so you have wonder of saying I'm unhappy because my religious rights are being infringed because I have to pay for great control for women I don't believe that we should do that so I think it can have these perverse effects if you only focus on that do you think that that's something you use thought mode? was with you right up until the very end of your question I think if you look at section 15 maybe it's used in different ways it's not always a good thing right so it's sometimes problematic and I think that if using it with this idea of happy it sort of takes out the social context where it has the possibility to do so sort of go back to the initial question about whether or not or even science sort of so I don't think that happiness is the be all and end all I'm not saying that you can reduce the charter to one section everyone has the right to be happy and leave it at that it's really interesting to this somewhat avoids your question but from a comparative perspective so the German constitution has a right to dignity in it you only get to use it if what you're complaining about is not captured by another right so a concrete right if what you're complaining about is not captured then you can go to dignity but I know if it removes the social context as a way as provides a way to have a conversation about what the actual interests are in a given court case and why they are important and why a judge might understand why they're so important to one particular group because he or she has never come close to that person's shoes in their entire life so we haven't had a section 15 clash yet yet they'll probably change the test when that comes for the fourth or fifth time we also want to ask about dignity we're going to take a long way together okay I guess it's going to be maybe we should be skeptical that research about subjective well-being can sell some of the most important questions about how we understand the idea of dignity but I guess I want to take you back to the slide where you're talking about the big conception of happiness it would yeah so the one that kind of pops out is that there's the feeling of conception of happiness it would conception of happiness is where happiness is not really about how I feel it's about perfectly objective facts about how I'm like-minded and so that's something that I think it's not really ever going to be captured by MRIs or any kind of social psychological subjective well-being research right and yet that's like a really powerful norm of tradition that important things are thinking about really really thick normative concepts like dignity now so that there's at least some people in some contexts who think when you think about dignity it's nothing about how I feel or it's nothing about how most people feel and it's nothing about what's happening in my brain it's about facts about my life and if that's the case and if those sorts of disputes are at issue in a case like Carter and I don't know if they are in different ways of thinking about dignity in that way then I guess like how much how much mustard is caught by lots and lots of research about subjective well-being yeah okay so I think the thing I like about this is it displays the philosophers not to pick on you but love for intuition and belief that the facts about my life can be discerned in an objective way that says those facts about my life are indeed the facts about my life and that somehow at death's door you'll be able to look back and say the facts about my life are this and those are concrete and you get it right or you don't and so the question then is still how do we get even if I were to accept what you're saying how do we get from the blackboard down to the judge who has to say whether that person's dignity has been infringed by this law now we don't have the facts of life at the end of their life yet so I have to determine whether or not that person's dignity has been infringed and I'm not in their shoes so I'm looking for I rely on my intuition which has been a disaster for some groups in Canadian law to have judges rely on my intuition of the facts about life because it completely ignores this other group or you can say is there other information that might be of use to me and it's not perfect and does it mean that it's going to spell out dignity with the clarity we might like the answer is probably no but is it better than the judge operating without that information and I think the answer is yes for that and to win the argument we have to go for I'm not going to say this on camera we have to go for more beers but all I have to do is do better than what the current judicial process is to be happy Do you have any thoughts on the concept of certainty in the law and the value of certainty for society and is there a danger to your approach in terms as opposed to looking at things from the reasonable person standard as to what everybody can expect the outcome of the law will be as opposed to looking at the subjective happiness approach of how will this make how will this make me feel or how will this affect the feelings of the person it definitely has a negative impact on certainty so I would say that if you can predict how a constitutional case is going to be decided in Canada with certainty then I have cookie for you because that area of the law at least does not seem to be rich with certainty other areas maybe so and maybe it's not a useful tool in all areas of the law but there's lots of places where the law attempts to employ a reasonable standard with certainty that's pulled from one person's perspective with no justification of why this other person's perspective is used and yeah that creates certainty to say that person's perspective governs that's what the reasonable person standard is but it doesn't answer the question of whether or not why we've picked that person's perspective and whether or not we've picked the right reasonable person's perspective a certain type of person goes to law school and we have certain values in our legal system that came to my mind with certainty predictability, stability, tradition even right so your theory I think has to acknowledge that it's upending a lot of the bed rocks of our common law system I acknowledge that I'm attempting to upend a lot of the bed rocks of our system and I love to talk through these doors like we like the roads we like the common circumstance of it all we have time for maybe one more question you've also been arguing that not just a legal system has to walk the path but the whole political government system has to walk the path so we have to act in right law which is a political dust and a lot of legal dust in a way that takes into account the increasing pluralism and the increasing difference of understanding of well-being yeah I think that the legislature needs to consider the impacts of its law and a wide variety of groups and it needs to show the monster really that it has considered those impacts and why it's chosen to reject and I think this has real benefits for pluralism pluralism doesn't mean that everyone gets to win necessarily but I think what we're seeing is a variety of groups in Canada and around the world that don't feel like their perspective is being heard before it's being rejected and that's leading to some very dangerous circumstances in some places I think on that I'll just end and thank you so much for joining me tonight