Measuring Activism and Restraint or How to Conflate Doctrine with Activism: A Response to Professor Riddell’s Small-Scale Judicial Output Study

Abstract

In his essay responding to our 2015 article Exclusion of Evidence under Section 24(2) of the (Riddell 2016; citing Murchison and Jochelson 2015), Troy Riddell critiques our methodology, exaggerates our claims, creates several straw persons, and ultimately concludes by proffering his own study, which our view, is unrelated to the stream of literature and research agenda that generated our original paper. (1) Riddell offers his narrow definition of activism and his consequent methodology as a superior approach to section 24(2) analysis under the Charter. He fails to recognize that our study is one a series of four papers (which include analyses of other Charter rights), (2) which purposely complicate and contextualize studies of judicial activism using over 60 years of extant literature and culminating the multifactorial approach used by Cohn and Kremnitzer (2005). Riddell acknowledges the complexities of judicial activism by referencing some earlier work (e.g., Canon 1983) and ultimately concludes that our work does little to explain the Supreme Court's relation to police powers. Ours was not a study of police powers per se but an attempt to seize on the activism literature to see how the Court sees its own activism relation to the multifactorial approach. Thus, the content analysis Riddell (2016: 93) suggests as a superior in their own approach would do little to place the Court's words the context of the storied history of activism studies. (3) As with any coding exercise, some subjectivity exists. These sorts of methodological critiques exist every time categorical variables are operationalized. Activism and restraint could always be operationalized differently, but re-operationalizing, as Riddell has claimed to do, does not warrant rejecting an entire approach to research design and analysis or even the specific operationalization our study. We posited that our findings were consistent with recent literature security studies, not that 9/11 was causative of socio-legal change. Riddell expands on alternate explanations that we provided our own paper as explicative of flaws. Given our own admissions of alternate hypotheses, we are not troubled. Explaining potential alternate explanations does not prove that they are causative. That one study cannot assess every variable desired does not indicate that our study has low external or internal validity. We are troubled by the baffling claim that terrorism and the responses to it have no relation to Court decisions regarding the deployment of state police power. If terrorism has no relationship to criminal law (a possibility), one cannot deny that Court responses generative of police powers that result the inclusion of otherwise impugned evidence (section 24(2)) surely have some relationship to security and surveillance Canada, which has obvious relations to state responses to terrorism. As some argue that Canadian society has become more surveillant (Haggerty and Ericson 2006; Gazso and Haggerty 2009), we offered our work this context. It hardly matters if the Court's language is causative of social changes or if the Court's language was caused by other phenomenon. All that matters is, as part of a surveillant assemblage, the Court's decision making is consistent with social changes. Seeing how the Court speaks of its own activism is revealing since it tells us how the Court relates to the original intent of Parliament, to past cases, to the changing of legal tests, to the use of extra-jurisdictional factors, to its role as guardian of the constitution, and to other multifactorial roles developed by Cohn and Kremnitzer (2005). Riddell's study cannot make these connections, as it is, at best, a judicial output study rooted doctrinal traditions and, at worst, a myopic decontextualized analysis. (4) The most curious of Riddell's moves is to append a fine judicial output study on a body of work that seeks to discredit a multifactorial judicial activism study rooted the Cohn/Kremnitzer model. …