The early years of the Charter of Rights were marked by erratic decisions rendered by judges with uneven intellectual abilities, the Ontario Court of Appeal's most senior judge said yesterday.
“The Charter had given constitutional jurisdiction to every mutt in the country,” Mr. Justice David Doherty told the Criminal Lawyers Association annual conference. “The first thing that had to be recognized is there was going to be a huge spectrum of intellectual ability addressing these very important questions.
“The results were consequently going to be all over the place,” said Judge Doherty, a senior prosecutor in Ontario's Crown Law Office when the Charter came into being in 1982.
Equally worrisome for the Crown, Judge Doherty told the convention, was that a significant portion of the judiciary was composed of former lawyers who felt the Bill of Rights had been unfairly gutted in the 1960s.
“The Bill of Rights had effectively been neutered by the judicial generation that had gone before,” he said. “You really had a sense that the judges – at least some of them – were going to be anxious to unearth and give effect to arguments they had made since 1960 that had proved unsuccessful.”
The worst fears of the prosecution side were soon realized when the Supreme Court of Canada set about granting precisely the same constitutional rights that had been denied under the Bill of Rights, Judge Doherty said.
He said prosecutors across the country immediately said to themselves: “Oh, oh … the guys who lost the arguments are now up there deciding who will win the arguments.”
To make matters worse for the Crown, Judge Doherty said judges were unduly influenced by Charter-friendly law professors who spoke to them at continuing-education seminars. “From a prosecutor's point of view, you don't expect that much that is said by an academic is going to support a position a prosecutor is ultimately going to take,” he said.
Brian Greenspan, a top defence lawyer for the past three decades, told the convention that the defence bar was caught by surprise when the judiciary began giving a broad, liberal interpretation to the Charter.
“We didn't appreciate that Justice [Antonio] Lamer, as he then was – was going to revisit the cases he had lost,” Mr. Greenspan said. “As a result, I think the defence played catch-up to the judiciary. The Supreme Court of Canada led the way.”
Judge Doherty told the convention he is worried about the public losing respect for the Charter and the courts because accused people frequently have their charges thrown out for breaches of the law.
“There are a bunch of people in the not-guilty pile that, on any sense of the factual reality, belong in the guilty file,” he said. “We run the danger of a public perception that this has all become a giant game of Snakes and Ladders that may be wonderful for the lawyers …
“You can't have the results float totally independent from what really happened, without the Charter becoming viewed as not the statement of basic principles we should all operate on, but as sort of the lawyers technical manifesto,” Judge Doherty said.
He also told the conference that the biggest lesson he learned from presiding over the recent Steven Truscott murder reference case was the value of disclosure of evidence.
“Truscott was very, very ably represented in 1959 by his lawyer, but his lawyer just didn't have what he had to have to demonstrate the problems with the Crown's case.”
