Measuring judicial activism on the Supreme Court of Canada: a comment on Newfoundland (Treasury Board) v. NAPE.

In the recent Newfoundland and Labrador Court of Appeal decision of Newfoundland (Treasury Board) v. NAPE, Justice Marshall accused the Supreme Court of Canada of "undue incursions ... into the policy domain of the elected branches of government ... " He added that these interpretation were happening more frequently and invited the Court to "revisit" its interpretation of section I of the Canadian Charter of Rights and Freedoms in R. v. Oakes.

While politically interesting, the authors suggest that the ensuing public debate (over judicial activism and the role of an unelected judiciary with respect Io public policy in light of the Charter) missed an important point of engagement: whether or not the empirical claims on which Justice Marshall based his comments are an accurate depiction of the Court's behaviour when faced with the possibility of striking down a "majoritarian" decision. In canvassing the quantitative research that is currently available on the matter, it becomes apparent the data is incomplete as it is not tabulated with the nuances of Charier analyses in mind.

The authors attempt to fill the void by building on previous studies, and specifically by distinguishing their handling of the data with stricter definitions of applicable data points. Four hypotheses, drawn from the claims made in the NAPE judgement, are tested: (1) the Supreme Court strikes down majoritarian legislation often; (2) judicial activism is increasing over time: (3) judicial activism is largely the product of the Court's Charter analysis under section 1; and (4) the Charter's legislative override under section 33 has been deligitimized.

Ultimately, each of the four hypotheses is contradicted by the data: the government wins the overwhelming majority of constitutional challenges brought to majoritarian decisions; judicial activism has not increased over time; the government's success rate in the section 1 analysis is highly dependant on whether or not an internal limit is imposed on a protected right; and the level of judicial activism has not increased as a response to the deligitimaization of the section 33 override.

Whether the judiciary is "unduly" activist or not remains elusive, however. as there are three significant limitations to a study based, such as this one is, on the analysis of government "win rates". At the core, the ambiguous treatment of what is "appropriate" versus "undue" interference makes it difficult to determine whether the Court has exceeded the constitutional scope of its powers. The small data pool and the possibility of a selection bias increase the difficulty of the task at hand. The authors conclude that Justice Marshall's normative claims are based on assumptions that are highly suspect and that before the debate on the propriety of judicial activism proceeds any farther, more quantitative legal research should be conducted to determine whether or not the Court is actually activist.