IT 'FUNDAMENTALLY' CHANGED THE JUSTICE SYSTEM ...

But Critics Say Strain Of Uncertainty In Courts Is Making Charter
Application Tougher Than Ever

Walter Tessling had thoroughly battened down his rural Ontario house,
confident that locks and curtains would be enough to foil even the
most inquisitive police officer who happened by.

What Mr. Tessling hadn't reckoned on was modern technology, in the
form a police surveillance aircraft equipped with a camera capable of
detecting unusual releases of thermal energy.

Waves of heat generated by Mr. Tessling's hydroponic set-up and
emanating from the walls of the house gave police an unmistakable
clue to the thriving marijuana grow operation within.

When it heard his case in 2004, the Supreme Court of Canada was
unimpressed by Mr. Tessling's plea for personal privacy. The court
said that detecting heat from a home is not intrusive enough to
constitute a breach of the Charter.

The case catapulted the Supreme Court into the new millennium,
offering a glimpse of the kind of Charter of Rights challenges that
are on the way.

In ruling against the rights of the accused, the Tessling decision
also symbolized another, quite different trend: the court's steady
retreat from what was once a decidedly bold -- some would argue,
reckless -- sense of activism when it came to criminal law.

"The Tessling decision suggested that the courts are likely to avoid
bold, universally sweeping principles, and will decide issues in a
case-by-case manner. The court has been very, very deferential on the
issue of privacy," said Kent Roach, a University of Toronto law professor.

In the late 1980s, a faction of the court known as the Gang of Five
- -- chief justice Antonio Lamer and judges Peter Cory, Jack Major,
Frank Iacobucci and John Sopinka -- coalesced into a voting bloc that
would not tolerate measures that infringed on the presumption of
innocence and the rights of the accused.

Their rulings tossed out confessions obtained by police trickery,
samples of bodily fluid extracted from suspects by stealth, and
criminal charges that had taken too long to come to trial.

"It was surprising to many people, and could even be described as
revolutionary," Prof. Roach said. "We hear a lot about cases like gay
marriage, but the criminal justice system has been the bread and
butter of Charter litigation. The system has changed fundamentally
because of the Charter."

However, those days have faded away to a point where no Supreme Court
judge consistently goes to bat for the criminally accused; the Gang
of Five has become the Gang of None.

"I don't have a sense of there being a group like that any more,"
said Michael Code, another U of T criminal-law specialist.

It was a pattern that mirrored federal politics. "The Reform Party
drove the agenda in the nineties and the Liberals began running
scared of its law-and-order agenda," Prof. Code said. "The Charter
was posited as the enemy of the people."

Much of the backlash against the Group of Five rulings was rooted in
criticism from police. According to Prof. Roach, this helped create
one of the most enduring misunderstandings about the Charter era:
that judges constantly subvert the legislatures by striking down laws.

In reality, he said, the vast majority of Charter rulings involve not
a broad law, but the actions of a particular prosecutor or police
officer in a specific case.

Prof. Code said that, ironically, police forces have done an
attitudinal about-face. He said that their initial "bleating" that
the Charter left them hamstrung has been replaced by a sense of acceptance.

Police have become adept at drafting polished affidavits that
incorporate the principles in the court rulings, Prof. Code said.
They have also come to appreciate a series of rulings that gave them
much-needed direction on how to detain and search suspects, he said.

The Supreme Court still picks its spots to wield the Charter -- such
as a recent ruling that required Parliament to refashion the
immigration security certificates procedure used for deporting
terrorism suspects.

Still, even this decision was tailored to offend Parliament as little
as possible. The effect of the ruling was delayed for a year to give
Parliament time to find a remedy, a technique the court has used more
and more to dull the shock of its rulings.

Probably no single Supreme Court ruling in criminal law has had more
impact than R. v. Stinchcombe, which laid down general expectations
for what the Crown and police must disclose to the defence in a criminal case.

However, Prof. Roach said that the Stinchcombe case also illustrates
one of the great failures of the Charter. Legislators rarely reform
their laws to reflect a ruling.

Since the Stinchcombe ruling, shockingly few legislative attempts
have been made to specify what the Crown has to disclose, Prof. Roach said.

He said that politicians have been equally lethargic in responding to
court decisions that delineated when and how police can stop
individuals for investigation or subject them to a strip search.

The end result is that lower-court judges find themselves tied up in
time-consuming litigation to determine whether a particular
investigative act was legitimate, or whether an item of evidence
should have been disclosed.

At the same time, Prof. Code and Prof. Roach said, the Supreme Court
is considering more variables in cases where previously it would
simply have excluded evidence that technically violated the Charter.

This leaves lawyers with a sense of uncertainty about what may or may
not be admissible.

It also puts lower-court judges in the position of having few hard
and fast rules to follow when determining whether to accept disputed evidence.

"One of the tremendous strains on our courts right now is that there
is too much uncertainty," Prof. Code said. "This is part of why
trials are so long. It also creates more room for errors by trial
judges. A huge pool of judges out there are now making decisions
based on these very uncertain rules."

Ontario Chief Justice Roy McMurtry said in an interview that the
situation cannot be permitted to go on. "Appellate courts have, in
some respects, made life more difficult for trial judges. Some of
these Charter motions go on and on and on.

We are going to see more and more concern by appellate courts about
the length of these proceedings," Chief Justice McMurtry said. "I
think that, in the months and years ahead, we will see the Supreme
Court reduce the time that is taken at the trial level."