The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50837
opinion judge and Court of Appeal disagreed that the search and seizure was unrea- sonable, and Cornell was convicted of possession of cocaine for the purpose of trafficking. A bare majority of the Supreme Court didn't buy Cornell's Charter argu- ment either. Justice Thomas Cromwell gave the reasons for himself, justices McLachlin, Louise Charron, and Marshall Rothstein. The search, he said, was conducted reasonably in the cir- cumstances. The police believed the house was being used by a violent crimi- nal gang, and evidence might be quickly destroyed if they announced their pres- ence in the usual way. But Fish, for the minority (which included justices Ian Binnie and Louis LeBel), did not think these police beliefs were reasonably founded. In persuasive and passionate reasons, which took Cromwell to task, Fish wrote, "there is no evidence that the officers considered that their safety was at risk or that evidence was likely to be destroyed when they executed their search at the Cornell home." Fish particularly found police use of balaclava masks to be offensive. "[T]he tactical team wore balaclavas because that is what they always did. And their avowed reason for proceeding that way was to intimidate and psychologi- cally overpower those inside, in part by creating an 'overwhelming senso- ry uniformed kind of appearance.' . . . Gratuitous intimidation of this sort — psychological violence entirely unre- lated to the particular circumstances Read Ontario (Public Safety and Security) v. Criminal Lawyers' Association at scc.lexum.umontreal. ca/en/2010/2010scc23/2010scc23. html; Vancouver (City) v. Ward at scc.lexum.umontreal.ca/ en/2010/2010scc27/2010scc27.html; R. v. Cornell at scc.lexum.umontreal. ca/en/2010/2010scc31/2010scc31. html; Tercon Contractors Ltd. v. British Columbia (Transportation and Highways) at scc.lexum.umontreal. ca/en/2010/2010scc4/2010scc4.html; and Fullowka v. Pinkerton's of Canada Ltd. at scc.lexum.umontreal.ca/ en/2010/2010scc5/2010scc5.html of the search — may in itself render a search unreasonable." Finally, wrote Fish, the invading officers should have had the search warrant with them. "This is not a technical or insignificant breach of the law. It is a violation of a venerable principle of historic and constitutional importance." The search and seizure was unreasonable, said Fish for the minority, and the evidence should be excluded. One interesting recent development is the way Cromwell, who has been on the court less than two years, has quickly emerged as a strong and independent voice. He gave the majority reasons in Cornell, fuelling an embryonic reputa- tion for being a law-and-order judge. In February, he led another bare majority (5-4) in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways). The issue there was whether a sweeping exclusion of liability cause in a contract was enforceable in the face of a serious breach of that contract. Cromwell, in a clear and compelling judgment, said it was not. Also in February, he wrote for a unanimous court in the Giant Mine negligence case, Fullowka v. Pinkerton's of Canada Ltd. Cromwell appears to be particularly interested in the tradi- tional private law subjects of contract and tort, which may now receive more sophisticated attention than in recent times. Although the most junior judge, he's becoming an important force on the court. As the summer ended, the court seemed ideologically confused. It backed off challenging the executive branch (Criminal Lawyers'). Then, contrary- wise, it invited everyone who thinks they are victim of a Charter breach to sue for damages (Ward). Wavering, it backed the police in a Charter case (Cornell). Meanwhile, watch Cromwell. Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com. Effective Written Advocacy Effective Written Advocacy brings together the wisdom of Canada's top practitioners, writing experts and judges to guide you on how to write powerfully and persuasively for your audience. Practical tips and illustrations are included. Commentary and annotations identify problems and provide solutions to make your written arguments clear and persuasive. With this book you will learn: Order your copy today Hardbound • 222 pp. 2008 • $90 P/C 0196010001 ISBN 978-0-88804-468-6 • tips to improve the strength of your legal writing • how to take your writing from factual to persuasive • what works and what doesn't from a judge's perspective • how to anticipate and address the court's concerns in your writing • how to design your written submissions so the judge can tell, at a glance, how you plan to argue your case and what law applies • how to structure your writing to be as persuasive as possible canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. CL1010 Prices subject to change without notice, to applicable taxes and shipping & handling. www. C ANADIAN Law ye rmag.com OC T OBER 2010 17 Compiled by: The H W ith contributions by Canada's top practitioners, writing experts and experienced judges onourable Justice Thomas A. Cromwell *Authors' royalties will be donated to the H Marvin Catzman Bursary fund. onourable