Measuring activism and restraint or how to conflate doctrine with activism: a response to Professor Riddell's small-scale judicial output study.

• Author: Jochelson, Richard
• Position: Article by Troy Riddell in this issue, p. 87

In his essay responding to our 2015 article "Canadian Exclusion of Evidence under Section 24(2) of the Charter" (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 in 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 in 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 in 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 in relation to the multifactorial approach. Thus, the content analysis Riddell (2016: 93) suggests as a superior "in their own words" approach would do little to place the Court's words in 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 in our study.

We posited that our findings were consistent with recent literature in security studies, not that 9/11 was causative of socio-legal change. Riddell expands on alternate explanations that we provided in 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...