It seemed to me it was a hugely important function for the court to perform – to say that it’s not our decision; it’s the decision of the people of Canada, but here is how we ought to go about making that decision. And that there are certain constraints imposed by the Constitution and the purpose of those constraints is to avoid chaos.
Can you name another decision in your time on the court that was comparable for you in terms of impact?
Another enormously important case had to do with the death penalty and extraditing fugitives back to the U.S. to face the death penalty – Burns and Rafay. Ten years before it, the court had said that extradition to face the death penalty did not necessarily violate the Charter. But in the 10 years that had gone by before the Burns and Rafay case arrived at the court, there was enormous turmoil in the U.S. over whether the death penalty could ever be justly inflicted. The Innocence Project had come up with a number of wrongful convictions.
My sense was if the Americans themselves are very uncertain about whether they are executing innocent people, there simply has to be a question about whether Canada should be extraditing people to face the death penalty. Given that our government would be delivering up the individuals and that our government was bound not to subject individuals to cruel and unusual punishment.
Did our own history of wrongful convictions augment that feeling?
We have had a number of wrongful convictions. I was personally involved in the appeal of the Guy Paul Morin case and he, of course, was convicted at his second trial. There was a community consensus – to the extent such a thing exists – that he was the guilty party, but it turned out he was exonerated by DNA. What it showed, with really profound impact, was that if you don’t follow the rules, you wind up with a very bad result. The rules were stretched at trial in that case because everybody was convinced he was guilty.
There is a certain finality about the death penalty that is very difficult to reconcile with the Charter.
In relation to rights of the accused, did your experiences prior to your appointment give you a healthy respect for those rights? The consensus among court watchers right now is that there is still a thin majority on many cases, but that your leaving will likely affect it.
I think I have come down the middle in many of these controversies. I think there has to be a balance between the ability of the state to investigate and prosecute crime. But as I said in relation to Morin case, rules have to be respected. Over centuries, courts have discovered – as in the case of jailhouse informants – that there are very serious problems the judges know about but the juror doesn’t necessarily know about.
So it is extremely important that the courts be quick to enforce the rights of the accused simply because when those rules are disregarded, we occasionally get wrongful convictions.
I think the level of support for the rights of the accused in Canadian society is surprising. People somehow identify with the person in the position of an accused. That was brought out recently in one of the cases involving the right to counsel. People instinctively said: ‘Look, if I was in that position, I’d want access to a lawyer because otherwise I wouldn’t understand what is going on.’
Yet, we are often told that a get-tough mentality has taken hold and is politically popular.
I don’t think it has taken hold of the court. Clearly, there is a variety of views, as there should be. That’s why you have nine judges and nine different perspectives. Although we disagree on some of the outcomes, there is a sense that this balance has to be maintained.
Still, there is a lot of concern within the defence bar, in particular, about the balance moving steadily toward upholding the authority of police and being skeptical of the rights of the accused. The right to counsel, for example, has eroded in a series of cases involving police interrogations. Could that become a concern?