Constitutional experts are questioning whether the Supreme Court of Canada still has the stomach to guarantee fundamental rights.
Not only is the court hearing fewer Charter cases, they contend, it increasingly releases timid, confusing judgments that confound lawyers and restrict the potential of the Charter.
Of the 70 appeals the court heard last year, only 10 involved Charter claims – and the claimants succeeded in just two of them, said Jamie Cameron, a professor and constitutional expert at York University's Osgoode Hall Law School.
At an annual Charter conference organized by Osgoode on Friday, she said the court's faltering output is compounded by tepid intellectual debate within the court and a tendency to sidestep difficult legal questions.
Prof. Cameron said there wasn't a single decision that stood out for "its importance, its foresight or its insights on the Charter and its protection of rights."
She said the court is "hugging the middle ground" at a time when the federal government is testing the limits of its power with new legislation such as mandatory minimum sentencing – a signature plank of Prime Minister Stephen Harper's omnibus crime legislation that has been criticized for being more political and emotional than empirical.
"Pairing the court's diffidence with the government's indifference to rights creates an unhealthy climate for the Charter and the protection of rights," Prof. Cameron said.
One of the country's top criminal law scholars – Queen's University law professor Donald Stuart – also accused the Supreme Court of turning its back on some key decisions that defined the Charter's first 25 years of existence.
Prof. Stuart said decisions in areas such as the right to silence have been "glaringly inconsistent" and left trial judges with little clear guidance.
"The court's recent record gives cause for alarm respecting issues of undue vagueness and inconsistency, and shows diminishing resolve in protecting Charter rights of the accused," Prof. Stuart said.
"This court is becoming Charter-averse," he added. "It doesn't even want to deal with Charter issues."
The criticisms come at a watershed period for the top court. The two judges who most frequently weigh in against diluting the rights of the accused – Justice Morris Fish and Justice Louis LeBel – are close to their mandatory retirement dates.
Prof. Stuart cited several recent criminal law decisions as instances of the court backtracking on key rights and creating a novel legal vintage: "Charter Lite."
In one case – R v. Nedelcu – he said the court effectively overruled a decision it made just seven years earlier, which prevents an individual's statement in civil court proceedings from being used to incriminate him in subsequent criminal proceedings.
The Nedelcu decision could touch off lower-court decisions that further erode the right, Prof. Stuart said.
However, Randy Schwartz – who represented the Ontario Crown in the Nedelcu case – defended the Supreme Court, saying it would have been outrageous to allow defendants to contradict themselves in different court proceedings.
"This was nothing more than a modest recalibration of a Charter right," he told the conference.