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22 N O V E M B E R / D E C E M B E R 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m C R O S S E X A M I N E D PHILIPPE LANDREVILLE Seismic changes Departing Supreme Court Justice Thomas Cromwell says he has seen Departing Supreme Court Justice Thomas Cromwell says he has seen many changes in the profession but many more need to come many changes in the profession but many more need to come By Elizabeth Thompson itting in the chambers he has occupied for nearly eight years, former Supreme Court Justice Thomas Cromwell was reflect- ing on some of the challenges that lie ahead for the court he is leaving behind. How to weigh the new issues posed by new technolo- gies? How do you balance Char- ter rights to freedom from unreasonable search and seizure with the need to enforce laws and protect national security? What constitutes a reasonable expectation of pri- vacy in the digital age? "I think that we as a society and we as a legal system have lots of unfinished business in the area of privacy and the competing demands of privacy and law enforcement," says Cromwell, soft-spoken but determined. "We also continue to have the national security and terrorism overlay on that. I'm quite sure that in the coming years the court will face — and we will face as a soci- ety — a lot of interesting questions about how we reconcile reasonable expectations of privacy with the capacity of technology." In fact, Cromwell says the impact of new technologies is one of the biggest changes he has seen during his time with the Supreme Court — from the way the justices do their jobs to the kinds of cases that land on their desks. "We obviously have got a large num- ber of cases that are really focused on the legal implications of technological change. Whether we are talking about assisted human reproduction, scientific develop- ments [or] medical developments. "In the privacy area, we have had a whole string of cases over the time I have been here that have really forced a re- evaluation of what we mean by privacy in the digital age. "Then, of course, there are all sorts of technologically related issues — whether it is in intellectual property or contract law, it's pervasive. But I think the area of privacy is maybe the most striking." But Cromwell won't be there to help the court navigate those thorny questions. Last spring, after 19 years as a judge, nearly 500 Supreme Court appeals and a decade shy of mandatory retirement, Cromwell, 64, served notice that he would retire on Sept. 1. Cromwell will continue to participate in the court's decisions on cases he heard while on the bench — something he expects will keep him busy until the end of the year. He leaves behind him judgments that have marked the evolution of Canada's laws, including the ruling he says he enjoyed the most — the 2012 decision in the Downtown Eastside case on standing, which recognized the right of a non-profit group representing Vancouver prostitutes to challenge Canada's anti-prostitution law on constitutional grounds. But unfinished judgments are not the only unfinished business on his plate. During his time on the Supreme Court, Cromwell began working on the question of access to justice in Canada, an issue he describes as "serious and pressing." Crom- well plans to pursue that "passion," only now with more freedom to participate in policy debates. Cromwell says progress is being made as people come together from across the S

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