News that Prime Minister Stephen Harper will appoint replacements for two retiring Supreme Court justices this summer doesn’t bode well for eroding Charter rights, says Toronto criminal lawyer Tyler Smith.

The announcement that Justices Ian Binnie and Louise Charron will step down next month came as a surprise to criminal lawyers particularly with respect to Charron, says Smith, a partner at Hicks Adams LLP. And, the fact that Harper will leave his stamp on the top court has those on the defence side of the bar talking about what direction the prime minister will go. Read Story

“I think the worry that I have, and that most criminal lawyers share, is that the current retrenchment of Charter rights that we’ve seen lately will continue, and that its pace will quicken and endure for a long time to come. Justices appointed today could sit on the court for fifteen to twenty years,” says Smith. Read Story

“From my perspective as a criminal defence lawyer, all the hard work the court devoted in the eighties and early nineties to defining and shaping Charter rights may well have been all for naught. There’s already been a slow erosion of our Charter rights as evidenced in cases like the Sinclair trilogy recently on s.10b and the right to silence,” notes Smith.

“In addition to that, another problem, and I think a very real one, is that when the constitutionality of Harper Conservative legislation is tested – for example the Truth in Sentencing Act, or the plethora of mandatory minimums that are coming down the pipe – they will be upheld by a Conservative-appointed court. So, I think our chances of defeating this legislation is going to be significantly reduced.”

Smith says to those who suggest he’s worrying about nothing: “I think we’ve got good evidence that the process has already begun in the court with recent appointments that are of a slight conservative bent. Harper is introducing tons of legislation that limits peoples’ rights to have conditional sentences for example, and that take away rehabilitative efforts. And, when it comes time for someone to test the constitutionality of those provisions, our chances of being successful in that regard are lessened if you have a Conservative-appointed court; a court that is appointed by the very people who introduced the legislation which is being challenged.”

Smith says he thinks Harper will appoint judges “that are not outwardly pro-conservative but justices that he believes will be less likely to defeat his legislation as being unconstitutional. He’d be loathe to appoint judges that he thinks are going to overturn legislation that he introduces. He’s been very vocal about activist judges and his desire not to have judges shaping the law. So, that’s the fear, that he will appoint judges with a specific goal in mind, which is to ensure that all the tough-on-crime legislation that he introduces remains in full force and effect for years or decades to come.”

The reaction in the courthouse hallways to the news among criminal lawyers, no matter what political stripe, “is on the one hand fear and on the other hand some hesitation or pause for thought of the whole process of appointments,” says Smith.

“The process was opened up a little bit for the last appointment, Justice Rothstein, and I think everyone agreed that some more transparency would be a positive thing for everybody involved, especially when you have governments appointing judges based at least in part on their bent whether it is pro-liberal or pro-conservative approach to the law and the issues,” says Smith.

Tyler Smith is a partner at Hicks Adams LLP where he practises criminal law. Admitted to the bar in 2001, he has a particular emphasis on defending youth and drug charges. He can be reached at (416) 975-1700 (ext. 240) or by email at tsmith@h-b-a.ca.