Since the terrorist attacks of 9/11, scholars have hypothesized that judicial decision making might change, with the judiciary putting more emphasis on security and the expansion of police powers and less emphasis on the protection of civil liberties, particularly in criminal cases (Lindquist and Cross 2009; Kelly and Murphy 2001; Jochelson, Weinrath, and Murchison 2012; Bloss 2008: 208; Romero 2003). The present article seeks to answer whether, in the wake of 9/11, the Supreme Court has changed the way it discusses constitutionally prescribed exclusion of evidence under section 24(2) of the Canadian Charter of Rights and Freedoms that would otherwise have been excluded. The Charter is, of course, supreme Canadian constitutional law, by virtue of section 52(1) of the Constitution Act, 1982, and it came into effect on 17 April 1982. Section 24(2) states that
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. (Canadian Charter of Rights and Freedoms 1982)
This means that Canadian courts have the power to exclude evidence if it has been obtained in a manner that is unconstitutional. The original importance of the section was that it provided a constitutional exclusionary remedy, even in situations where evidence was probative, important to the Crown's case, and reliable. In order for a case to be analysed under section 24(2), there must first be an identified violation of a Charter protected individual right (such as the rights contained in ss 7, 8,9,10b, etc.). Justice McLachlin (as she then was) discusses the new role of the Court in R v Hebert (at para 178), stating,
The Charter introduced a marked change in philosophy with respect to the reception of improperly or illegally obtained evidence. Section 24(2) stipulates that evidence obtained in violation of rights may be excluded if it would tend to bring the administration of justice into disrepute, regardless of how probative it may be. No longer is reliability determinative. The Charter has made the rights of the individual and the fairness and integrity of the judicial system paramount. The logic upon which Wray was based, and which led the majority in Rothman to conclude that a confession obtained by a police trick could not be excluded, finds no place in the Charter. To say there is no discretion to exclude a statement on the grounds of unfairness to the suspect and the integrity of the judicial system, as did the majority in Rothman, runs counter to the fundamental philosophy of the Charter. According to Morton and Knopff (2000: 39), by 2000 (before this article's benchmark of 9/11) the Supreme Court of Canada had used the Charter as a tool for judicial activism--a means of asserting judicial discretion to undo the legislative prerogative of the democratically elected government. The notion of judicial activism has often been used to critique the perceived political machinations of a Court in contravention of Parliamentary will. As we describe below, we have refined a type of activism analysis as a discourse analysis--an assessment of how the Court speaks about itself in decision making. This allows us to analyse any case before the Supreme Court for discourse effects, regardless of whether the Court is responding to legislation or not. In the case of section 24(2), the Court has interpreted the Charter and is thus making determinations about the scope and application of the Canadian Charter--the supreme law of the land. Using the model we have developed, our data has revealed more restrained behaviour of the Court in the years following 9/11. September 9,2011 is used as a pivot point of analysis partly in order to compare our results to previous findings, using the same model as for search and seizure jurisprudence (Jochelson et al. 2012), and partly because the general discussion of security and deployment of law in the security and policing literature routinely pivots around 9/11 as a watershed moment (Bloss 2008; Haggerty 2009). Thus, our principle inquiry is whether measured discourse effects align with the conceptions of more secure state actions advanced by socio-legal scholars. In this regard, 9/11 is a convenient temporal pivot point and, as we explain later, the examination of other temporal pivot points appears to support the use of 9/11 as an analytic pivot point in complicated ways.
Development of section 24(2) tests
The first significant judicial test post-Charter for whether or not evidence should be excluded under section 24(2) was developed by the Supreme Court in R v Collins, a case which established three factors to be considered before deciding whether or not evidence should be excluded in response to a Charter violation by the state in the course of criminal investigation. The test was an objective, reasonable person test: would the admission of the evidence bring the administration of justice into disrepute in the "eyes of the reasonable person, dispassionate and fully apprised of the circumstances of the case" (R v Collins at paras 33-36) } The first factor that would be considered under the new Collins test is trial fairness: whether the admission of the evidence in question would affect the overall fairness of the trial (R v Collins at para 55). The analysis was further developed in R v Stillman in 1997 and subsequently became known as the Stillman test (R v Stillman at para 74). In Stillman, Justice Cory for the majority proposed a two-step test: First, is the evidence of a conscriptive nature (i.e., was the accused required to participate in the creation or the discovery of this evidence?) (R v Stillman at para 77). If so, the second step of the test requires identifying whether or not the evidence was otherwise discoverable by non-conscriptive means (R v Stillman at paras 102-5). The second factor goes to the overall seriousness of the Charter violation in the case at bar (was it a serious violation or merely a minor one?), and the third and final prong of the test is whether or not the inclusion of the evidence would bring the administration of justice into disrepute (R v Collins at paras 29-33). Thus the state of the law before 9/11 was largely informed by three major questions that an accused was required to answer. First, was the fairness of the trial compromised, a matter which was usually answered in the affirmative if conscriptive evidence was used as a means of conviction. If the trial was not rendered unfair by the use of the evidence, then the court could address the final two issues--how serious the breach was and whether the evidence's admission would bring the administration of justice into disrepute. The test as developed was notable because it possessed near exclusionary rules in the case of conscripted evidence--an aspect of the test that was favourable to accused persons.
This test remained in use until it was completely overhauled by the Supreme Court in 2009 in R v Grant, and a new three-part test was instituted instead. The movement toward the Grant overhaul was a slow and steady one, in which seeds were planted across multiple cases, but a new legal interpretation did not manifest itself until 2009. The new test did away with near automatic exclusionary rules and asked that all evidence be assessed using three broad questions. The exclusion analysis was to be undertaken in light of (1) the seriousness of the Charter breach (including a fulsome assessment of the actions of police and whether the actions were in good faith); (2) the impact upon the accused due to the severity of the breach (including whether the accused suffered serious or multiple violations of interests considered significant by court decisions); and (3) whether the administration of justice would be brought into disrepute by inclusion of the evidence. Factors to be weighed in the inclusion/exclusion of evidence decisions also included the reliability of the evidence and the societal interest in truth seeking and the administration of justice, long-term and prospective, as seen by the reasonable society member (R v Grant at paras 71-79). Each branch of the test would need to be assessed to determine exclusion or inclusion of evidence.
Understanding judicial activism
The term judicial activism is a contested one. For example, the term is often used as a means of critiquing a particular decision and suggests, when lobbed at the judiciary, that the judiciary has somehow abused its constitutional or legislative role (Kelly and Manfredi 2009: 295). Charges of judicial activism are usually meant to suggest that the court has adopted a political stance, and worse, that this stance has resulted in judicial decision making beyond the "proper limits" of the judiciary (Cohn and Kremnitzer 2005; Jochelson et al. 2012). The literature on judicial activism is, of course, vast. The general conception is that judicial activism occurs at the boundary of judicial decision making, when a court moves beyond its adjudicative function and into the legislative realm (Cohn and Kremnitzer 2005; Jochelson et al. 2012). A Court may appear to make this shift (from restrained to activist) when it makes decisions that trouble the supremacy of Parliament, when it defies the intent of the law's drafters, when it skirts the plain meaning of legislation, when it makes decisions that affect social policy, when it makes large-scale, high-impact, and significant decisions on the basis of relatively poor and narrow judicial resources (such as facts and social science evidence), when it overturns settled law (statutory, constitutional, or common law principles), when it makes decisions on the basis of materials not in force within...