Response to Jochelson and Murchison

I thank Professors Jochelson and Murchison for their response to my paper, but, with respect, I remain unconvinced. The most significant problem that I identified with their approach was the methodology by which they tried to capture whether the Court’s discourse in section 24(2) cases was reflective of activism and restraint. Jochelson and Murchison (2016) respond to the charge that their Likert scales are ambiguous and, more importantly, do not capture the essence of the Court’s discourse by claiming that “some subjectivity exists” (113) in any coding exercise and that their study builds on previous literature. But they never directly engage with the substantive critique. For example, how do they justify arbitrarily coding a decision as being activist because it has significant obiter dicta, when the obiter dicta might convey the message that courts should be deferential to Parliament?

Jochelson and Murchison argue that my approach is doctrinal and decontextualized and therefore does not capture how the Court relates to Parliament, to past cases, and so on. However, their coding scheme gives us no insight on these matters. At least by looking at outputs, with some contextualization in the form of changing jurisprudence (such as the R v Grant decision), we can get some sense as to how the Court is relating to the executive branch and whether past cases seem to be influencing future decisions.

Part of our underlying disagreement appears to lie in whether one can or should trace the causes of judicial decision making. Jochelson and Murchison (2016) cannot seem to make up their mind on this point. At one point in their response, they say they do not care about cause and effect in terms of the Court’s language in relation to a “surveillant assemblage” (113) (but one example of the jargon that mars their work). Elsewhere in their response, though, they say one cannot deny that “surely” there is “some relationship” (113) between the Court expanding police powers by allowing unconstitutional evidence to be introduced, on the one hand, and security and surveillance and state responses to terrorism, on the other. Personally, I think that trying to trace causal linkages is interesting and important, though very difficult. Intrepid readers who have braved the debate thus far will have to decide whether Jochelson and Murchison were (or should be) interested in a possible causal effect of 9/11 and whether my approach or theirs best helps us to understand why the Court has become more prone over time to allow evidence under section 24(2) – a trend that predated 9/11. More broadly, I stand by my contention that outputs should be the defining characteristic of activism and restraint and I was happy to read that Jochelson and Murchison will be adding outputs to their analyses in future work.