Measuring Activism and Restraint: An Alternative Perspective on the Supreme Court of Canada’s Exclusion of Evidence Decisions under Section 24(2) of the Charter

Abstract

In the January 2015 issue of the Canadian Journal of Criminology and Criminal Justice, Melanie Janelle Murchison and Richard Jochelson maintain that the Supreme Court of Canada has become more restrained since 9/11 in its exclusion of evidence decisions under section 24(2) of the Charter of Rights. In making this assertion, the authors provide Likert scale scores that attempt to measure different dimensions of activism and restraint. I argue that these measures of activism and restraint are flawed, particularly if one is interested in whether the Supreme Court is giving police more latitude to investigate crime. Using measures of whether evidence was actually excluded or not to assess activism or restraint, I argue that the Supreme Court has become somewhat less prone to exclude evidence over time but that 9/11 is not a convincing explanatory factor either empirically or logically. A Charter maturation effect and sensitivity to critique from law professors would appear to be better explanations.