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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.

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.”

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