Of the four judges appointed by Mr. Harper, each is perceived as holding conservative or moderate opinions on rights of the accused. The only one with deep expertise in criminal law – Mr. Justice Michael Moldaver – is widely seen to be in favour of enhanced police powers and less Charter litigation.
However, legal experts add a caveat to their analysis. It is far from unheard-of for judges to jolt the expectations of the government that appointed them. “People will be watching Justice Moldaver especially closely,” said University of Toronto law professor Kent Roach. “He is obviously a criminal-law expert and he may very well surprise some of his critics.”
With lower-court judges beginning to strike down Mr. Harper’s changes, the looming question is whether the relatively cautious Supreme Court bench, with its frequent assertions of deference toward the will of Parliament, will follow suit.
Prof. Roach said it may be reluctant to interfere with new legislation since it does not like to second-guess laws that are anchored in a firm analysis of the policy choices available.
Prof. Roach said that the most pressing story in the criminal-law field is actually Parliament’s abdication of its role in legal reform. The steady drip of case-by-case adjudication does not provide a stable framework for the law, he said: “We have lost any sense that Parliament can be a force for change.”
As far back as the Chrétien Liberal governments, Prof. Roach said, federal politicians had stopped providing leadership on thorny issues such as police procedure and the right to privacy. Instead, they left the courts to deal with them. Judges have been inundated with cases requiring them to decide whether the right to privacy encompasses bus lockers, garbage cans, school bags; and the circumstances in which police can or cannot detain suspects.
“Still, there comes a point where too much is too much – even at the Supreme Court,” observed an Ontario provincial court judge, speaking on condition of anonymity.
In a recent interview, Chief Justice McLachlin said much of the heavy lifting under the Charter was completed by the time she took the reins of the court, leaving mostly procedural tweaking.
Others are not so sure.
“This is not a time for complacency,” said Jamie Cameron, an Osgoode Hall law school professor. “The 30th anniversary is a good time to remember the courage the Supreme Court showed in giving life to the Charter, as it did in a succession of cases that were difficult, but momentous.”
Judge Fish declined to be interviewed about criminal rights, but he has publicly taken solace in his having fought the good fight. Accepting a lifetime achievement award from the Criminal Lawyers’ Association in November, he urged his audience to fight hard to retain the defining principles of the justice system.
“As for the right to counsel and the right to silence, you may say: ‘Well, you haven’t done such a great job so far yourself,’ ” Judge Fish said. “Perhaps. But I have tried. However, of one thing I am certain. If the defence bar does not assiduously pursue and protect these rights, we will not enjoy them for very long.”
THE SUPREME COURT’S SO-CALLED GANG OF FIVE ASSEMBLED AS THEY DISCOVERED COMMON GROUND IN CASES DEALING WITH THE RIGHTS OF THE ACCUSED. THEY INCLUDED:
Chief Justice Antonio Lamer
A veteran defence lawyer from Montreal with a practice that included all manner of petty crooks, gangsters and white-collar fraudsters, he was well acquainted with questionable police tactics. Prior to being appointed to the Supreme Court of Canada, he served on the Law Reform Commission of Canada, whetting his appetite for criminal law reform.
Mr. Justice John Sopinka
A top civil litigator in Toronto's Bay Street bar, his blend of keen legal knowledge and plain-talking realism made him an influential judge. He represented nurse Susan Nelles in a civil suit against police and prosecutors for their role in prosecuting her in relation to a spate of mysterious deaths at Toronto's Hospital for Sick Children, honing his sensitivity to procedural fairness.
Mr. Justice John Major
An Albertan whose career was embraced primarily civil and corporate law, Judge Major was expected to play a peripheral role in criminal law jurisprudence. Instead, he defied conventional wisdom and wrote strongly in favour of Charter principles safeguarding the rights of the accused.
Mr. Justice Frank Iacobucci
A former senior bureaucrat at the federal Department of Justice, Judge Iacobucci rose to become a central figure on the court. His steady, thoughtful voice resounded through numerous judgments affirming equal treatment under the law and respect for fair police tactics.
Mr. Justice Peter Cory
Also a career civil litigator, Judge Cory’s knowledge of criminal law expanded exponentially during his time as an Ontario Court of Appeal judge. After his retirement from the Supreme Court, the Criminal Lawyers’ Association honoured his adherence to the rights of the accused by presenting him with the prestigious Martin Award for lifetime achievement.