As a scholar interested in law and the courts, the Charter of Rights, and criminal justice issues, I was heartened to see this journal publish an article on the Supreme Court of Canada's exclusionary-rule jurisprudence under section 24(2) of the Charter of Rights and Freedoms (Murchison and Jochelson 2015). However, while I appreciated the attention given by authors Melanie Janelle Murchison and Richard Jochelson as to whether section 24(2) jurisprudence by the Supreme Court had become more activist or restrained, I found myself objecting to how the concepts of activism and restraint were defined and operationalized and to the authors' conclusions, including ones that link their findings to an ethos of securitization ushered in after 9/11. In the present article, I identify these concerns and provide alternative data and explanations for the Supreme Court's section 24(2) decisions.
After finding that the Supreme Court's propensity to admit evidence under section 24(2) began before 9/11, I argue that a Charter maturation effect and sensitivity to critique from law professors and other judges appear to better explain the Court's decision making. Before presenting my data and conclusions, however, I first review and critique the methods and conclusions offered by Murchison and Jochelson.
Critique of the Murchison and Jochelson Approach
In the first paragraph of their article, Murchison and Jochelson (2015: 116) indicate that they are concerned as to whether "the judiciary is putting more emphasis on security and expansion of police powers and less emphasis on the protection of civil liberties, particularly in criminal cases" in the post 9/11 era. Since Murchison and Jochelson are interested in whether the Supreme Court is emphasizing police power over civil liberties, it would seem that an outcome-oriented approach to measuring judicial activism and restraint would best align with their research interests. Is the Supreme Court excluding evidence less frequently over time, particularly since 9/11? Surprisingly, while Murchison and Jochelson refer to scholars who have tracked rates of exclusion, they do not cite figures nor do they measure this themselves. Instead, they opt for a discourse analysis of the section 24(2) decisions that attempts to measure activism and restraint along various dimensions, such as whether the Court adhered to precedent in its decision.
Murchison and Jochelson quite rightly note that there are several different definitions of judicial activism or restraint. For example, in addition to looking at whether a court strikes down law or policy enacted by the legislative or executive branches, some scholars have used the concepts in the context of whether a court departs from precedent or not, while others look at the degree to which a court adheres to the intent or language of the constitution (see Canon 1983). Murchison and Jochelson (2015: 123) therefore eschew measuring activism and restraint along one dimension and instead opt for a multi-dimensional approach to measuring the degree to which the discourse and legal reasoning in section 24(2) decisions reflect "how the Court sees itself in relation to Parliament, the Constitution, and the governance of society through its constitutional interpretations." Adopting a model from Cohn and Kremnitzer (2005), they measure different dimensions of activism and restraint using 13 indicators. These include whether a court departs from its precedents, whether the decision was unanimous or not, to what degree the court discusses core constitutional values, how much it relies on comparative sources, how it uses obiter dicta, and whether the court supplies its own solution and interferes with legislative policies set by democratic processes.
Critically, these variables and how they are coded do not advance our understanding as to whether the Court is allowing police more investigative latitude at the expense of civil liberties. For example, according to Murchison and Jochelson's coding scheme, if the Court asserted its guardianship of the Constitution and noted the constitutional values at stake, then the decision is coded closer to the restrained end of a 10-point Likert scale. However, often judges use that kind of rhetoric when declaring laws or actions of state officials unconstitutional, which means that some cases in which the Court excluded evidence would be coded as restrained. This might, in turn, give the impression that the Court was giving more latitude to the police rather than less. Similarly, is it necessarily the case that unanimous decisions should be considered more restrained than decisions that feature concurring and/or dissenting opinions if one is interested in the judiciary's propensity to check police conduct? The Sinclair (2010) case illustrates some of these problems. In R v Sinclair, the majority of the Supreme Court decided that the accused could be interrogated by the police for several hours without being allowed to again contact his lawyer, with whom he had had two brief conversations (lasting for a total of about six minutes) prior to the start of the interrogation. Four judges, in two separate reasons, wrote strong dissents. For example, Justices LeBel, Fish, and Abella argued that "a proper understanding of this right [the right to counsel in section 10(b)] is far broader than their [majority] reasons indicate, and reflects the role that counsel plays in the life of the law, the protection of the rule of law, and particularly, in the administration of criminal justice" (Sinclair at para 125). They would have excluded the evidence under the section 24(2) exclusionary rule, as the interest of society in having a case adjudicated on its merits is sometimes "outweighed by the protection of the most fundamental rights in the criminal justice system" (Sinclair at para 225). In a separate dissent, Justice Binnie also argued that section 10(b) was violated and would have excluded the evidence. Here you have a very divided decision in which the outcome allows police to interrogate individuals without their lawyer being present or even being able to consult again with their lawyer (except under narrow circumstances). However, under Murchison and Jochelson's (2015) coding rules, because the Court was fractured, the decision would be coded as more activist along that dimension (152; judicial voices variable), which might give the erroneous impression that the Court was actively working to reduce the scope of police investigative power. Also, both the majority and the dissent in Sinclair talk about the broad purposes of section 10(b) (and the dissent also discusses section 24(2)), but both sides come to different conclusions. This calls into question why one should assume that referring to the meaning of the Constitution and constitutional values should be coded as more restrained as opposed to more activist if one is interested in the degree to which the police are constrained by a court decision.
It also would be very difficult to code the Sinclair decision and others according to the scheme helpfully supplied by Murchison and Jochelson in the appendix. For example, there is no code for a majority and two dissenting opinions in the judicial voices variable. As another example, under the interpretation variable the coder is expected to choose one of these options:
Supreme Court interprets section 24(2) as the safeguard against illegally obtained evidence and an important Charter protection = 1
Majority interprets section 24(2) as a valued Charter protection, but not one that is without limits as prescribed by law = 2
Concurring justices discuss the high valued Charter protections; however, the majority does not = 3
Majority interprets the Charter as it was intended, but the dissent does not = 4
Majority of the Court interpret the Charter to their own ends but still discuss original intent of Charter = 5
Charter is interpreted by all Court members to their own ends = 6
Majority of the Court interpret the Charter to their own ends but a dissent holds true to the original interpretation = 7
Supreme Court is open to overriding section 24(2) Charter protection, in favour of other interests = 8
Supreme Court interprets section 24(2) as being easily overridden = 9
Supreme Court interprets section 24(2) in a way that contradicts being a high protection from illegally obtained evidence = 10 (Murchison and Jochelson 2015:147; interpretation variable)
However, this requires the coder to make considerable assumptions about what the justices' "own ends" might be or what the original interpretation of the Charter was to be. The thrust of most Supreme Court Charter decisions involves a contestation of what the constitutional text means and how it should be applied. (And some scholars of judicial decision making would argue that even strong legal references to how Charter language should be interpreted may be a disguise for how the judge wants the case to turn out from a policy-preference standpoint.) The categories, moreover, are not mutually exclusive nor do they cover all the possible scenarios one could envision in a decision.
I could provide other examples of how difficult it would be to obtain reliable and valid coding of these cases on the 1-10 Likert scale for each dimension of activism and restraint. However, I do not want to distract from the fact that the key shortcoming of the analysis is that the indicators and their operationalization do not speak to Murchison and Jochelson's concern as to whether the judiciary is emphasizing the expansion of police power over civil liberties. Only one of the variables appears to be primarily outcome-oriented. This variable--majoritarianism and autonomy --asks whether...