Making Numbers Count: An Empirical Analysis of Judicial Activism in Canada

Abstract

This paper empirically examines the decision making of the justices on the Supreme Court of Canada after the enactment of the Charter and before and after the events of September 11, 2001 (9/11) to determine if the levels of judicial activism on the Court have changed. The term judicial activism is used by academics, journalists, and citizens alike but the phenomenon is ill defined and often used as a pejorative term. The field of law, particularly in traditional doctrinal analysis, has been reluctant to adopt this approach, as few legal scholars have attempted to understand the phenomenon using empirical methodology. This paper adopts a hybrid content analysis empirical approach to depict the elusive, but widely cited, occurrence of "judicial activism" in Canada. Drawing upon an adapted and critiqued version of Cohn and Kremnitzer's "multidimensional model of judicial activism", this paper argues that there have been statistically significant shifts in judicial behaviour since 9/11. The Cohn and Kremnitzer model measures activism across multiple dimensions and this paper argues that empirical measurements of the phenomenon of "judicial activism" can contribute to broader understandings of the Canadian Supreme Court's approaches to justice. In doing so, this paper projects two significant findings: firstly, that using a hybrid content analysis to analyse activism complements and challenges the existing methods for critiquing judicial Melanie Murchison is an Associate Lecturer in the Department of Sociology and the Legal Studies Program at the University of Wisconsin-Madison. She received her Ph.D from Queen's University Belfast. She holds a MA in Legal Studies from Carleton Universtiy and a BA (Honours) from the University of Winnipeg. 426 MANITOBA LAW JOURNAL VOLUME 40 ISSUE 3 behaviour and assessing judicial activism, and secondly, that the current approaches to understanding complex legal phenomena can be complemented and supplemented using empirical methodology.