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Supreme Court of Canada is seen in Ottawa (Dave Chan for The Globe and Mail/Dave Chan for The Globe and Mail)
Supreme Court of Canada is seen in Ottawa (Dave Chan for The Globe and Mail/Dave Chan for The Globe and Mail)

End of an era looms on Supreme Court Add to ...

He is a former journalist who entered law and quickly rose to become a star of the Montreal defence bar. He rose higher still to Quebec’s Court of Appeal and finally, in 2003, took a seat on the most powerful bench in the country.

At the Supreme Court of Canada, Mr. Justice Morris Fish has been a persuasive champion for the rights of the accused, using the Charter in novel ways and persuading colleagues to support his pithy, dissenting opinions.

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Judge Fish is approaching mandatory retirement in 2013, and his looming departure is stirring a debate among legal observers on the future of Charter-related criminal cases in Canada. The debate has been galvanized, in part, by Prime Minister Stephen Harper’s tough-on-crime agenda, which lower courts have shown a willingness to challenge – raising questions about how the composition of the ultimate arbiter will affect the last word.

If, as some believe, Mr. Harper appoints a replacement who is more hawkish on crime, it could mark the end of an era for a court that was seen as a reliable advocate for the rights of the accused.

Judge Fish has carried on the legacy of the Gang of Five – a faction of Supreme Court of Canada judges whose orientation toward the rights of the accused in criminal cases dominated the court in the 1990s.

The Gang is no longer – and with successive retirements, there has been a gradual transformation of the court

On one right alone – the right to silence – the court has done an apparent about-face in the past decade. “The law has completely shifted,” said one senior appellate judge, who spoke on condition of anonymity. “Now you can have extremely oppressive circumstances in which an accused is effectively compelled to speak. These rights have undergone an enormous, 180-degree turnaround.”

Criminal cases make up the majority of the court’s docket. The nine judges are regularly called upon to decide whether new forms of electronic interception are too intrusive; if police crossed the line in a seizure of evidence; or whether a particular sentence was too stiff.

Criminal cases will devour even more of the Supreme Court docket should lower-court judges opt to strike down strict laws drafted by the federal government, which include mandatory minimum sentences and provisions for electronic surveillance.

A typical criminal-law decision often finds Judge Fish – known for his literary flair – attracting support from fellow judges on dissenting opinions.

In one such ruling, the 2007 case of R v. Singh, Judge Fish thundered against the majority for eroding the right to silence. “A right that need not be respected after it has been firmly and unequivocally asserted any number of times is a constitutional promise that has not been kept,” Judge Fish said, in reasons that were endorsed by three colleagues.

And in a 2010 ruling, R v. Gomboc, Judge Fish aligned with Chief Justice Beverley McLachlin to protest a majority decision that police can seize electricity-use records.

“When we subscribe for cable services, we do not surrender our expectation of privacy in respect of what we access on the Internet, what we watch on our television sets, what we listen to on our radios, or what we send and receive by e-mail on our computers,” they said.

Under the leadership of Chief Justice Antonio Lamer in the 1990s, these sorts of opinions usually represented the majority. As the Gang of Five gelled, it embarked on a run of landmark legal changes.

The five – Judges John Sopinka, John Major, Frank Iacobucci, Peter Cory and Chief Justice Lamer – threw their weight behind fair-trial rights, full disclosure of evidence, the presumption of innocence and the right to silence and investigative fairness. They rejected the use of evidence gained through police deception, illegal searches and breaches of privacy.

However, as the 1990s wore on, their judgments began to kindle increasing controversy. The court was criticized for being too activist; for using the Charter to bind the hands of police and prosecutors and swinging the law too far in favour of accused criminals.

When Beverley McLachlin was appointed Chief Justice in 1999, sweeping criminal-law judgments became more the exception. The court permitted more intrusive searches, created a right to detain suspects for investigative reasons and, in three right-to-silence cases, permitted police to press suspects until they made potentially damaging admissions.

“Bright and committed detectives have been given a huge authority to use tricks, inducements, lies, polygraphs and psychological techniques largely free of scrutiny by lawyers and even in the face of multiple assertions of the so-called right to silence,” said Donald Stuart, a Queen’s University law professor.

All of which left Judge Fish increasingly isolated. While various judges share his views on occasion, they rarely combine to form a majority.

“Replacing Justice Fish is worrying in terms of balance on the court,” said Prof. Stuart, who favours the use of the Charter to restrict police misconduct. “The replacement will very likely not have his commitment to criminal justice in the widest sense.”

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.”

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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.

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