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OP I N I ON BY PHILIP SLAYTON TOP COURT TALES Expect a strong and growing law-and-order bias With a Conservative prime minister appointing a number of judges before the next election, the face of the Supreme Court is changing. M ichael Moldaver and Andromache Karakatsanis are our new Supreme Court judges. They replace justices Ian Binnie and Louise Charron, who in May both announced their resignation. (It sure takes a long time to fill a Supreme Court vacancy.) Will this change in the court's composi- tion have much effect on criminal law? Criminal cases are a huge part of the Supreme Court docket, about a third of the appeals in a typical year. They offer a tasty opportunity to divide ideologically. Just like any citizen, a judge may be for "law and order," sympathetic to the victim and favouring the state and the police in the fight against crime. Or he or she may be partial to the civil liberties of the accused, seeking to rein in the police, for example, by excluding evidence obtained using dubious interrogation techniques. The Supreme Court has often been badly split between judges who like law and order and those who prefer the rights of the accused. Recently the law-and-order judges (two of them now ex-judges) — Chief Justice Beverley McLachlin, and jus- tices Charron, Marie Deschamps, Marshall Rothstein, and Thomas Cromwell — have been in the ascendant, but not by much. Justices Binnie, Morris Fish, and Louis LeBel have been on the civil liberties side, with Justice Rosalie Abella flitting back and forth between the two camps. So, in recent times the vote on a criminal appeal has likely been 5-4 for law and order, or maybe 6-3, depending on what Abella decides. Don't underestimate the depth of the split. In the 2010 R. v. Sinclair case, justices LeBel and Fish, with Abella agree- ing, wrote that the majority's reasoning "tends to erode the very basic principles of Canadian criminal law. . . ." Gender is an interesting sidebar. Have you noticed how female judges tend to favour law and order? In 2008, professor Donald Songer published a book called The Transformation of the Supreme Court of Canada. He con- cluded after much analysis that female judges were more likely than male judges to support the prosecution in criminal cases. With unintentional humour (Songer's book is pretty dull), he announced, "gender has emerged as www.CANADIAN Lawyermag.com N O VEMBER / D ECEMBER 2011 21 MATT DALEy