Searching and Seizing after 9/11: Developing and Applying Empirical Methodology to Measure Judicial Output in the Supreme Court's Section 8 Jurisprudence

Abstract

In 2005, Margit Cohn and Mordechai Kremnitzer created a multidimensional model to measure judicial discourse inherent in the decision making of constitutional courts. Their model set out multiple indicia by which to measure whether the court acted within proper constitutional constraints in order to determine the extent to which a court rendered a decision that was activist or restrained. This study attempts to operationalize that model. We use this model to analyze changes in interpretation of search and seizure law under section 8 after the enactment of the Canadian Charter of Rights and Freedoms at the Supreme Court of Canada. The authors attempt to determine whether or not there were significant changes in the levels of measurable judicial discourse after 9/11. They explain how the model can be adapted into a Canadian context and justify the adapted model. The last part of the paper undertakes the application of the model to all Supreme Court cases since 1982 that explored Charter-based search and seizure issues. Ultimately, the paper finds significant changes in judicial discourse for certain types of judicial output, which indicate a more conservative approach to judicial decision making in the period after 9/11. The adapted model serves as a reminder that courts exercise their decision making through discourse that moves in numerous directions in any given era and that likely does so differently in alternate areas of law. Future research applying the Cohn/Kremnitzer model promises rich, complex analysis that will serve to enrich our understandings of law and society.