Supreme Court: the emerging don’t-sweat-the-fine-print bloc

PAUL WELLS: Ted Opitz’s win was the Harper government’s first good day at the Court in a while

There was some chatter on Twitter this morning, after the Supreme Court ruled to uphold the election results in Etobicoke Centre, to the effect that Stephen Harper has finally succeeded in stacking the top court with corrupt thugs and we are now fully entered into a post-democratic era here in KanuckiHarperStan. My hunch is that this overstates things.

First, this was actually the Harper government’s first good day at the Court in a while. The Supremes have more often been in the habit of handing Harper trouble, as with the Insite supervised-injection site case and Jim Flaherty’s dead-parrot project for a national securities regulator. In those highest of high-profile cases, Harper appointees concurred with their colleagues in unanimous judgments.

Today there was division, and it didn’t follow partisan lines neatly. (I’ll cut to the chase: I think it’s simplistic to presume a justice appointed by a given PM will consistently rule in ways that please that PM. This has simply never been the case in Canada, to the dismay of a succession of prime ministers.)

Today’s majority included Michael Moldaver and Marshall Rothstein, appointed by Harper, and Marie Deschamps and Rosalie Abella, appointed by Jean Chrétien and Paul Martin respectively [I got that wrong the first time around — pw]. The dissent was written by Chief Justice Beverley McLachlin, appointed to the court by Brian Mulroney and elevated to Chief Justice by Chrétien, with Chrétien appointees Louis Lebel and Morris Fish concurring.

The “swing” votes here were Abella’s and Deschamps’. And this isn’t the first time that has happened.

On Oct. 12 the Supremes handed down their ruling on R. v Prokofiew, a criminal-law case. You see, the excellently named Ewaryst Prokofiew and an associate appear to have gotten rich by claiming GST on the sale of non-existent farm equipment. The judge in the case — and here I’m going entirely on this summary by Canadian Lawyer magazine — didn’t specifically tell the jury that Prokofiew’s failure to testify should not be taken as evidence of his guilt. Prokofiew argued he’d been falsely convicted because he declined to testify. In upholding a lower-court decision, Mr. Justice Moldaver essentially said the jury should be treated as adults:

“[W]hile I agree that an explicit remedial instruction from the trial judge would have been preferable — and would have been warranted in these circumstances — I am satisfied that the instructions that were given in the instant case, when considered as a whole, were adequate,” he wrote.

“I am confident that the jury would have understood, in the context of the entirety of the instructions, that the Crown could prove Mr. Prokofiew’s guilt only on the evidence and, as Mr. Prokofiew’s silence at trial did not constitute evidence, it could not be used to prove his guilt.”

Mr. Justice Fish, writing for the dissenters, was more of a fine-print guy. “We have no basis for supposing that the jury understood, in the absence of an explicit instruction by the judge, which counsel had stated the law correctly…. The guiding hand of the trial judge was essential — and absent.”

There’s a striking consistency of style between the Supremes’ arguments, majority and dissenting, in that case and this. In both cases, a majority that calls for a broad and generous reading of the rules, and a minority that calls for a narrow technical reading.

And every justice who was in the majority on R. v Prokofiew was in the majority on Opitz v. Wrzesnewskyj, and every justice who dissented in the first case dissented today. (To further complicate matters, two more recent Harper appointees, Andromache Karakatsanis and Thomas Cromwell, did not hear the evidence in Opitz and were on opposite sides of the Prokofiew ruling.)

Questions of legal philosophy aside, the prose style of today’s ruling is striking indeed, although when I said so in the lockup at the Court, some of my colleagues chuckled. Rothstein and Moldaver, who did the writing for the majority, move immediately to questions of principle, writing in their first sentence: “A candidate who lost in a close federal election attempts to set aside the result of that election.” That sentence makes it pretty clear who they think “lost” and what the “result” was. “We reject the candidate’s (Wrzesnewskyj’s) attempt to disenfranchise entitled voters and so undermine public confidence in the electoral process,” they continue.

There is nothing so sweeping in the opinion McLachlin wrote for the dissenters. The Chief Justice has worked hard to ensure the largest possible degree of consensus on the Court; unanimous rulings far outnumber split decisions since she became the Chief. She lost that struggle today, and an emerging division among the Supremes, one that does not hew closely to party lines, seems to result.

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