It took a certain amount of arrogance for Liberal MP Irwin Cotler and the NDP’s Joe Comartin to storm out of the parliamentary advisory panel on Supreme Court appointments this summer.

Cotler was outraged that Justice Minister Rob Nicholson had changed the Supreme Court selection process he set up when the Liberal party was in power.

Reducing the total membership of the panel to five by eliminating outside legal experts would give the three Conservative MPs the majority vote on the six candidates — narrowed down from a much longer list of names — to recommend to the prime minister.

For opponents of the Conservative Party of Canada, the change in membership was further proof of Prime Minister Stephen Harper’s secret agenda to stack Canada’s top court with judges ideologically sympathetic to his plans for the country.

For serious practitioners of the law, Comartin and Cotler’s theatrics were amusing because, as any criminal lawyer can tell you, Liberal-appointed Supreme Court judges have emasculated the Charter of Rights and Freedoms. Perhaps a secret agenda, then, is necessary if it means righting the imbalance between the interests of the
individual and those of the state.

What do I mean? Take a look at any of our Charter guarantees and see what Supreme Court judges have done with them over the last few years.

In 2009, for example, Chief Justice Beverley McLachlin, an appointee of former prime minister Jean Chrétien, led the charge in creating a new right of detention for police officers in R. v. Grant.

An unelected, Liberal-appointed judge decided to expand police powers so they can stop you while you’re walking down the street, question you, and pat you down. They couldn’t do that before.

I would think the question of which powers police ought to have is a debate for Canadians, but the Supreme Court and the opposition MPs on the selection committee don’t seem to agree.

In that same decision, former prime minister Paul Martin’s appointment, former justice Louise Charron, weakened the public’s right against unreasonable search and seizure.

It used to be that the courts would throw out evidence such as breath or blood samples if authorities didn’t respect an accused’s Charter rights. That’s not the case anymore. The new test for precluding evidence makes it much easier for Crown prosecutors to convict a defendant even when the police haven’t followed the law.

In 2007, another Chrétien appointee, former justice Michel Bastarache, was part of a top court majority that decided that police could ignore a person’s assertion of the right to silence.

As a result, no matter how many times people tell a police interrogator that they don’t want to speak, the officer can keep going until they crack under the pressure.

Each decision, written or decided by Liberal-appointed judicial activists, has made Canada that much safer for the police and prosecutors but not for the public. It’s galling, then, to think that only the opposition parties know how to appoint judges.

It’s also appalling to see what the Liberal party’s appointees have done. Former prime minister Pierre Trudeau, the author of the Charter, must be aghast.

The real issue is that for the last 20 years of the Charter, our judges have engaged in judicial activism that at times has set social policy and therefore encroached on the legislative function of Parliament.

Judicial activism was permissible, it would seem, as long as it was advancing the causes of special interest groups. The problem is that there’s no way to know which direction judicial activism is going to take next.

Certainly, the first few years saw an expansion of rights within the criminal law context that circumscribed the powers of prosecutors and police.

This was a good thing given that the fundamental objective of a criminal justice system is to avoid wrongful convictions caused by unscrupulous police officers and Crown prosecutors with tunnel vision. The last few years have seen a retrenchment of those rights. Today’s Supreme Court is inappropriately concerned with wrongful acquittals.

Let’s hope that justices Andromache Karakatsanis and Michael Moldaver turn out to be truly conservative judges who won’t engage in judicial activism and will preserve what little is left of our Charter protections. There’s no doubt it would make Trudeau smile.

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Sam Goldstein practises criminal law in Toronto. He can be reached at samgoldstein.ca or 416-927-1211.

For more information, see "SCC nominations leave gap."