Michael Moldaver and Andromache Karakatsanis are our new Supreme Court judges. They replace justices Ian Binnie and Louise Charron, who in May both announced their resignation. (It sure takes a long time to fill a Supreme Court vacancy.) Will this change in the court’s composition have much effect on criminal law?
Criminal cases are a huge part of the Supreme Court docket, about a third of the appeals in a typical year. They offer a tasty opportunity to divide ideologically. Just like any citizen, a judge may be for “law and order,” sympathetic to the victim and favouring the state and the police in the fight against crime. Or he or she may be partial to the civil liberties of the accused, seeking to rein in the police, for example, by excluding evidence obtained using dubious interrogation techniques.
The Supreme Court has often been badly split between judges who like law and order and those who prefer the rights of the accused. Recently the law-and-order judges (two of them now ex-judges) — Chief Justice Beverley McLachlin, and justices Charron, Marie Deschamps, Marshall Rothstein, and Thomas Cromwell — have been in the ascendant, but not by much. Justices Binnie, Morris Fish, and Louis LeBel have been on the civil liberties side, with Justice Rosalie Abella flitting back and forth between the two camps. So, in recent times the vote on a criminal appeal has likely been 5-4 for law and order, or maybe 6-3, depending on what Abella decides. Don’t underestimate the depth of the split. In the 2010 R. v. Sinclair case, justices LeBel and Fish, with Abella agreeing, wrote that the majority’s reasoning “tends to erode the very basic principles of Canadian criminal law. . . .”
Gender is an interesting sidebar. Have you noticed how female judges tend to favour law and order? In 2008, professor Donald Songer published a book called The Transformation of the Supreme Court of Canada. He concluded after much analysis that female judges were more likely than male judges to support the prosecution in criminal cases. With unintentional humour (Songer’s book is pretty dull), he announced, “gender has emerged as a significant new basis for cleavages on the Supreme Court of Canada. . . .”
Charron wrote from the right and dominated the court in criminal law. Binnie wrote eloquently from the left. Karakatsanis and Moldaver look as if they are at the conservative end of the political spectrum, although it may take a little while and a few judgments for this to become clear (and once appointed a judge can behave in surprising ways). It’s hard to imagine our current prime minister appointing as a Supreme Court judge someone nervous about police practices and worried about the rights of the accused. So now the law-and-order vote will likely be 6-3, or maybe even 7-2 (depending on Abella), with Fish and LeBel holding the lonely civil liberties fort.
If this worries you, get ready for much worse. The mandatory retirement age for a federally appointed judge is 75. Fish is almost 73. LeBel is almost 72. Prime Minister Stephen Harper will be filling their seats before the next federal election. By the time that election comes, six of the nine members of the court will have been appointed by the current prime minister (and maybe more — there’s always the occasional unexpected resignation before retirement age). All these new judges will be around for a long time. The chances are that the Harper Court, for the next decade or two, will be voting 8-1 (maybe even unanimously) in favour of the law-and-order agenda.
But, you say, what about September’s InSite decision (Canada (Attorney General) v. PHS Community Services Society)? A unanimous Supreme Court ordered the federal minister of Health to issue an exemption from the Controlled Drugs and Substances Act (which provides criminal penalties for trafficking and the possession of drugs) to a supervised drug injection site in Vancouver’s downtown eastside. A previous minister of Health had made clear that an exemption granted earlier was not going to be renewed because of government policy. But the court said that failure to grant an exemption was “arbitrary and unsustainable,” had nothing to do with the maintenance and promotion of public health and safety, and was contrary to the right to security of the person guaranteed by s. 7 of the Charter. The pundits went nuts. The much-respected columnist Chantal Hébert, for example, wrote, “the Insite ruling is the most brutal collision to date between the Supreme Court of Canada and Stephen Harper’s Conservative government.”
No government lackeys, this judicial lot, or so Hébert and some others suggest. The Insite case, they argue, shows that judges are unpredictable, and are not going to kowtow to the government’s policy line. So why should we fear that a tough new law-and-order court is emerging, with a narrow view of the Charter of Rights and Freedoms, and that the two new judges will be part of that disturbing evolution?
The Insite case only dealt with a narrow issue: whether an exemption from certain provisions of the CDSA should be granted to a particular facility that almost everyone agreed was doing splendid work very much in the public interest. The government’s position on the drug injection site, nonsensical and pigheaded, was more than any judge, no matter what his ideological stripe, could abide. The court was careful to make clear that the CDSA as a whole was a valid exercise of federal jurisdiction over criminal law and that the statute itself was not contrary to the Charter. Only the minister’s foolish refusal to exempt a particular facility was offensive.
Expect a strong and growing law-and-order bias from the Supreme Court. That doesn’t mean that sometimes, just sometimes, the bias won’t be leavened by a dollop of common sense.
Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. His latest book is Mighty Judgment: How the Supreme Court of Canada Runs Your Life. Visit him online at philipslayton.com.