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law Times • July 11, 2011 15 months ago when his former jus- tice minister, Marc Bellemare, an- nounced publicly that Liberal party fundraisers had infl uenced the ap- pointments of three judges back in 2003 and 2004. Bellemare said he was forced over bilingual SCC judges P icking judges is no easy matter. Ask Quebec Premier Jean Charest what he went through Harper in conundrum The Hill By Richard Cleroux against his will to recommend the appointments. Th ey were strong ac- cusations indeed. It took eight months and an in- quiry by former Supreme Court justice Michel Bastarache to clear Charest while countering the dam- age done to the reputations of the judges Bellemare had identifi ed. We know now that our judicial selection process is fraught with dangers. We didn't need the Belle- mare controversy to tell us that. Six years ago, for example, Prime Minister Stephen Harper decided he should let Vic Toews, his justice minister at the time, pick the can- didate for a seat on the Supreme Court bench. Harper should have known better. Toews picked his old law school professor at the University of Mani- toba, Marshall Rothstein. He's a good enough judge. But he unfor- tunately doesn't speak French. Of course, there are lots of bilin- gual judges in Manitoba. But the move must have made perfectly good sense for Toews, whose own grasp of French leaves a lot to be desired. But the appointment brought no end to problems ever since that now require shuffl ing Rothstein away from French-language cases or re- sorting to translations when judges chew over judgments that involve complicated matters in French. Imagine a unilingual French- speaking judge trying to sort out the complexities of a big Toronto real estate case where everything is in English and, as a result, having to depend on translations from either a court-appointed translator or col- leagues on the bench. If judges can struggle for hours over a comma, imagine what they do with a whole sentence, especially when it's in a language they don't understand. Th e Rothstein aff air taught Harper a lesson. When it came time for his second appointment, he made sure he picked somebody who understood both offi cial languages: Th omas Cromwell of Nova Scotia. Th at solved the problem. We're somewhat fortunate in this country. In the United States, the Supreme Court fi ghts over all sorts of things that have never been a problem here in Canada. Abortion hasn't been an issue here since 1989. Canada, in fact, is the only modern country in the Western world that has no abortion law. Apart from hardline zealots, there's no great hue and cry to have one. Gay rights do come up before our court, but unlike south of the border, there's an end to the debate in that forum once the matter is settled. Possibly the biggest provincial rights test our Supreme Court ever dealt with was Quebec's ability to separate from Canada and how to handle that in a legal manner. Th e Supreme Court settled it and the decision still stands. Th ere's some grumbling, but at least Canada didn't have to resort to a civil war to deal with the matter. Our court doesn't divide on po- litical or geographic lines. We don't have Liberal or Conservative justices on the Supreme Court bench. Th ere's one controversy, however, that keeps coming up. With Harper about to appoint two new judges from Ontario to fi ll the seats occu- pied by two bilingual justices, you've probably already guessed what it is. Th e issue keeps arising in Parlia- ment. Yvon Godin, the feisty NDP MP, has been fi ghting hard to have Parliament adopt a law ensuring that the nine judges at the top court are bilingual. Th is means thousands of lawyers and judges who haven't been able to master a second offi cial language will fi nd themselves left off the short list of Supreme Court candidates. But it also means many others who are bilingual are in line for a chance at the top job. Th ere was a time when the only bilingual judges to be found were in Quebec or Ontario. But all of that has changed. Many immersion graduates are in law school now and soon they'll be hanging shingles and eventually working their way up from one court to another. But what about those older uni- lingual lawyers and judges who never learned the other language? Godin's answer is that the Supreme Court wasn't set up to provide jobs for judges. Godin's private member's bill made it all the way through the House of Commons during the last session. But after Harper's Senate colleagues blocked it, it died on the order paper when the general elec- tion was called. Godin hasn't given up and is trying again. He'll be at it in the fall. If Harper caves and brings in leg- islation requiring all nine future Su- preme Court judges to be bilingual, there will be a hard core of angry unilingual lawyers and judges, some of whom voted for the Conserva- tives in the recent election. But then again, Harper could make a move that would endear him to many of the 17 per cent of Cana- dians who are bilingual. As an alter- native, he could keep on appointing bilingual judges as he did the last time without making it a law. But is that promoting bilingual- ism, something he's required to do under the articles of the Offi cial Languages Act? It will be a tricky decision for him either way. Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux @rogers.com. COMMENT Canada unlikely to follow U.K. lead on right to silence W BY MICHAEL DEMCZUR For Law Times hile watching Life on Mars, a British TV drama about a police offi cer who's struck by a car in 2006 and wakes up in 1973, I became curious about police procedures in England. One of the running gags in the show is that every time the offi cer, Sam Tyler, arrests someone, he says, "You do not have to say any- thing, but it may harm your defence if you do not mention when questioned something which you later rely upon in court. Anything you do say may be given in evidence." Th e other characters invariably note that that's not how it goes. I must confess that it sounded a little strange to my ears as well. After all, isn't there a common law right to remain silent? It turns out the right to silence was abridged, or some would say abolished, in England by the 1994 Criminal Justice and Public Order Act. In fact, s. 34-39 of the act provides for a whole host of situations where a negative inference can be drawn against silence. If people fail to mention any fact that they later rely upon and that, in the circumstances at the time, the accused could reasonably be expected to mention, a negative infer- ence can be drawn. In addition, if people fail to give evi- dence at trial or answer any questions, the court can draw a negative inference. Th e same applies if upon arrest they fail to account for their presence at a place; for objects, substances or marks on them; or for clothing or footwear in their pos- session or in the place where they were arrested. Lest you think all civil liberties have been pitched out the window in Eng- land, the act has a provision for silence at a police station. Th at is, the negative inference only fl ows after the accused has spoken to legal counsel. Given the state of the law, though, I'm not sure what ad- vice counsel could provide to an accused. As I read about this shift away from such a key element of justice, I was perplexed. How could such a pro- found change take place? What was behind this bizarre new world? Th e answer is almost as strange as the change itself to the right to remain silent. Ironically, this change has its origins in the concern for the wrongfully convicted. After a rash of cases of wrongful convic- tions, the British government introduced the 1984 Police and Criminal Evidence Act. Th e act was a comprehensive codifi - cation of the rules of procedure police are to follow in a whole host of situations. One of the areas regulated by the act is interrogation. It had come to light that many wrongful convictions were the result of false confessions. Th ey were thought to have resulted from the tactics police were using at the time to interrogate suspects, the best known of which was the Reid technique. What's objectionable about the Reid technique is that it's designed to elicit confessions. Part of the technique involves building rapport, presenting false evidence, mini- mizing the off ence, and then becoming more aggressive while confronting the person being interviewed in an attempt www.lawtimesnews.com Speaker's Corner to get the subject to confess. DNA evidence subsequently vindicat- ed several individuals convicted in Eng- land as a result of giving confessions after being subject to the Reid technique. In accordance with the 1984 law, the British government developed a new interviewing technique called planning, engaging, ac- count, closure, evaluate (PEACE). Un- like the Reid technique, the offi cer using PEACE isn't trying to get the person be- ing interviewed to confess. Th e offi cer isn't allowed to en- gage in manipulative strategies, such as presenting false evidence, or be confron- tational. Instead, the PEACE technique is intended to be a non-confrontational process to collect the facts. With these changes, law enforcement authorities became concerned that their ability to investigate would be severely limited. After all, if people don't have to say anything and the police can't use more aggressive and manipulative techniques to get them to speak, the argument is that investigations will be more diffi cult. In response to the implementation of the PEACE technique, the government did away with the right to remain silent. It was a trade-off of sorts. Th at is, the police behave in a more humane way and the person being interviewed has to be more forthcoming in answering questions. Th e British courts have taken readily to the amendments. In R. v. Weber, for example, the House of Lords ruled that s. 34 of the Criminal Justice and Pub- lic Order Act applies to facts that are put to witnesses by the defence even if they don't adopt them. Th e result is that cross-examination is fraught with new perils for defence counsel. Any alternative scenario put to a witness by the defence can now attract a negative inference if it hasn't been disclosed to the prosecution beforehand. Applying the law in this way means that the defence will be penalized by negative inference if they don't engage in a type of reciprocal disclosure. While this puts an end to the ambushing of the prosecution, it also takes a signifi cant ad- vantage away from the defence. As I pondered these developments, I wondered whether such a change in the law could be coming to Canada any time soon. I don't believe so. Unlike England, Canada has a written constitution. Th e courts have found the right to remain si- lent to be an essential part of the right to life, liberty, and security of the per- son. It's not simply a matter of passing legislation amending the right to silence. Th e government would have to amend the Constitution or the Supreme Court of Canada would have to signifi cantly reinterpret the meaning of fundamental justice in s. 7 of the Charter of Rights and Freedoms. Alternatively, the government would have to pass legislation making the change and then invoke the notwithstanding clause. Th is is a very unlikely course of ac- tion, however, for any government either now or in the future. Th at said, if in 1973 you predicted that England would abridge the right to silence by statute, people would have thought you were from Mars. Michael Demczur is an assistant Crown attorney in York Region. His views are his own and not those of the Ministry of the Attorney General. PAGE 7