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SCC judge's retirement leaves gaping hole in criminal law
By Cristin Schmitz

August 05 2011 issue

Justice Charron looks forward to life after the Supreme Court of Canada when she retires at the end of the month. [Roy Grogan for The Lawyers Weekly]
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Justice Louise Charron’s retirement at the end of this month will deprive the Supreme Court of Canada (SCC) of the judge who led the way on the single largest part of its workload.

Some lawyers might be surprised to learn that the modest 60-year-old judge is the court’s unrivalled leader in criminal law — which comprised 34 per cent of the appeals heard by the judges last year.

But the numbers tell the tale. The former law professor and bilingual ex-Crown attorney has written more of the court’s governing criminal law jurisprudence — by far — than any other judge during her nearly seven years on the court, reveals a Lawyers Weekly analysis of her written output.

From Aug. 30, 2004 up to press time on July 28, Justice Charron wrote 44 majority or unanimous criminal law judgments — nearly one quarter of the court’s governing criminal jurisprudence in those seven years.

This eclipses the court’s other criminal law expert —Justice Morris Fish — who wrote 33 judgments for the court during that time, but who often found himself in dissent.

Justice Charron has written mostly unanimous and majority judgments. Our analysis discloses that she has been the voice of the court in nearly 80 per cent (54 of the total 68) of the criminal and civil judgments she has written as of July 28.

That is an enviable track record for an SCC judge, capping a 23-year judicial career in which she also penned some groundbreaking decisions as a trial judge (for example, R. v. Olscamp, [1994] O.J. No. 2926, which rejected bogus “expert” psychological evidence in child sex abuse cases) and at the Ontario Court of Appeal (for example, M. v. H., [1996] O.J. No. 4419, which struck down the opposite-sex requirement for spousal support).

“I would say that in criminal law she was definitely a leader at the Supreme Court,” Queen’s University law professor Don Stuart told The Lawyers Weekly.

“Justice Charron brought a great deal of expertise in the criminal justice system to the court. She was also extremely hardworking, very conscientious, a clear writer and she wrote a lot of now-leading judgments for the court,” he said.

“She is going to leave a gaping hole in the court,” echoed University of Ottawa law professor David Paciocco, who has been friends with Justice Charron since she taught at the law school. “Both she and [Justice Ian] Binnie are very strong in the criminal law and evidence area, and this is an urgent need that the court must have filled,” Paciocco urged.

Members of the criminal defence Bar give Justice Charron credit for her intellectual rigour and the depth of her knowledge, but complain that her judgments for the court have sided, for the most part, with the Crown, particularly with respect to police powers, the right to silence and the right to counsel.

“She has been instrumental in the court taking an overall conservative approach in criminal law matters, and an approach that interprets constitutional rights narrowly,” said certified criminal law specialist Andras Schreck of Toronto’s Schreck Presser.

Michal Fairburn, general counsel with Ontario’s Ministry of the Attorney General, called Justice Charron “a huge force on the court.”

“She had had a significant influence on the development of  the Charter, and how it’s to be applied,...and a significant influence on the operation of the administration of justice throughout the country,” Fairburn told The Lawyers Weekly. “On a more personal level, she was always an absolute pleasure to appear before. But there was no question that you had to know your case, and know it cold, or she was going to know it better than you,...and she’d always go right to the nub of the issue in the case.”

At the SCC, Justice Charron has lived up to her reputation of being an organized, focused and disciplined jurist who gets along well with her colleagues and gets the job done (she has declined all media interviews before leaving the court).

“She has got a remarkable sense of humour that is not on public display [in the courtroom],” comments former Supreme Court Justice Jack Major.  He told The Lawyers Weekly his ex-colleague is “low-maintenance” and not egotistical.

“From my time with her, there was no petulance, no accommodation [required from others],” he recalled. “She is very conscientious and detailed and she is very cooperative to work with as far as accommodating people. But she forms her own opinion. She is an independent thinker. And if she should disagree with you, there is no animosity. It’s just a professional viewpoint that’s different.”

Unlike fellow (soon-to-be-) retiree Justice Binnie, whose judgments run the gamut from aboriginal law to trademarks, Justice Charron has concentrated mostly on criminal law. Some of her jurisprudence displays the innovative streak that emerged in her rulings in the courts below.

She has produced landmarks on the law of evidence, including rationalizing the notoriously difficulthearsay rules and revamping (along with Chief Justice McLachlin) the analytical scheme for excluding evidence under s. 24(2) of the Charter. (See highlights of Justice Charron’s judgments below.)

 “I think the most important decision she authored was the R. v. Khelawon [[2006] S.C.J. No. 57] decision on hearsay,” says Paciocco. “It is a clear, compelling description of the principled approach to the law of hearsay that could substitute for a textbook on the subject.

 “She also pushed aside the complexity of having to distinguish between ‘threshold’ reliability factors and ‘ultimate’ reliability factors that had caused tremendous confusion in the jurisprudence.”

Paciocco said Justice Charron has combined a sophisticated understanding of criminal law theory with common sense, as well as a realistic appreciation of what works in the legal trenches — derived from a decade as a front-line prosecutor and seven years as a trial judge.

“She understood that the rules of law have to be used, and while you can conjure up academic complications, if it means that the law is impossible to apply it has to be fixed — and she was prepared to fix it,” he said.

Yet some of Justice Charron’s judgments for the court elicit fierce criticism. They include R. v. Singh, [2007] S.C.J. No. 48, and R. v. Sinclair, [2010] S.C.J. No. 35 (co-authored with Chief Justice McLachlin )— two pivotal 5-4 decisions that narrowly interpreted the pre-trial right to silence and the scope of the right to counsel during custodial interrogations.

“She led the court into allowing limited controls on police interrogation in a way that makes us out of step with other countries actually, and opens the door to abuse,” contends Stuart, who is the editor-in-chief of the Criminal Reports.

Stuart considers these two judgments “major disappointments” that have put a “black mark” on the court’s reputation.

“I know that the defence Bar feel that there are quite a lot of interrogations going on in Canada on a Sunday in the wake of Sinclair and Singh so that police know that accused can’t get access to defence counsel. They have to deal with duty counsel.”

Another ruling decried by criminal lawyers is Justice Charron’s recent 9-0 decision in R. v. Nixon, [2011] S.C.J. No. 34, which permits Crowns to resile from plea deals except when they engage in misconduct or are improperly motivated.

 “I think defence counsel would likely say that, by and large, she was law and order,” Stuart observes. “But fairly looking at her record, that is not necessarily true.”

In fact, there have been some significant defence wins. For example, Justice Charron expanded the scope of Crown disclosure (R. v. McNeil, [2009] S.C.J. No. 3) and made it more difficult for the Crown to prove dangerous driving (R. v. Beatty, [2008] S.C.J. No. 5).

In R. v. Hamilton, [2005] S.C.J. No. 48, where she dissented in favour of acquitting someone accused of counseling others to commit a crime, she cautioned against overreaching with the criminal law at the expense of other important social values.

Paciocco lauds Justice Charron for her courage in making controversial decisions, where necessary, at all three levels of court, whether it was demolishing the Crown’s use of suspect evidence in child sexual abuse cases (Olscamp), rewriting the definition of “spouse” (M. v. H.) or rejecting an American-style right to counsel (Sinclair).

“She took steps as a jurist that many other judges would have shied away from,” he says. “She was in the [Supreme] Court at a time when big issues came forward that the defence lost on, and she was the one who authored the decisions, and she was the one who dealt with the issues that happened to be before her...She is not a doctrinaire judge.”

Justice Charron will be remembered for her foundational contributions to criminal law, especially to the law of evidence, but she also wrote noteworthy civil judgments at the SCC. Among the most high-profile was Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] S.C.J. No. 6, in which Justice Charron extolled the importance of religious tolerance and accommodation in holding that a school board should allow a Sikh student to wear his kirpan.

“That was an enormously important decision on freedom of religion,” comments Mahmud Jamal of Toronto’s Osler. Her bold approach arguably “was a high-water mark for freedom of religion,” he says.

Seven out of seven: judgments from Justice Charron

Justice Louise Charron’s most important majority or unanimous rulings during her seven years at the Supreme Court of Canada from 2005 to 2011 include:

1. R. v. Khelawon, [2006] S.C.J. No. 57. Dubbed a “tour de force” by the Criminal Reports, it is the leading case on the admissibility of hearsay evidence.

2. R. v. Grant, [2009] S.C.J. No. 32. With co-author Chief Justice Beverley McLachlin, her landmark judgment clarified the meaning of “detention” under the Charter and reconfigured the Charter’s s. 24(2) rules for excluding unconstitutionally obtained evidence. The companion case, R. v. Suberu, [2009] S.C.J. No. 33, established that a detainee’s right to counsel without delay begins immediately upon detention.

3. R. v. McNeil, [2009] S.C.J. No. 3, recognized a new Crown duty to automatically disclose police disciplinary records and criminal investigation files involving serious police misconduct and simplified the common law regime for producing third-party records in criminal cases.

4. R. v. Briscoe, [2010] S.C.J. No. 13, clarified the mens rea requirement for party offences and the tricky doctrine of willful blindness.

5. R v. Beatty, [2008] S.C.J. No. 5. This dangerous driving case clarified the law of criminal negligence and how the “marked departure” from the standard of a prudent driver works.

6. R. v. Sinclair, [2010] S.C.J. No. 35, held that the Charter’s s. 10(b) right to counsel doesn’t give a person the right to have his or her lawyer present during a custodial interrogation by police. R. v. Singh, [2007] S.C.J. No. 48, held that the common law confessions rule effectively subsumes the Charter right to silence.

7. Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] S.C.J. No. 6. Emphasizing that “religious tolerance is a very important value in Canadian society,” her decision that a school board should not have prohibited a Sikh student from wearing a kirpan to school gives guidance on the Charter’s s. 2(a) guarantee of freedom of religion and on reasonably accommodating religious beliefs.

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