In December, I questioned the common thought that lawyers, scholars and judges who promote judicial restraint and the rule of law should be called “conservative”. I cited Justice Grant Huscroft of the Ontario Court of Appeal simply applying accepted common law principles to lead to what appeared to be a “progressive” result in the employment law case of Michela v. St. Thomas of Villanova Catholic School. Justice Huscroft has not been the only former academic recently appointed to the Ontario Court of Appeal whose emphasis on judicial restraint and constitutional originalism has led to accusations that his judicial philosophy is merely a thinly veiled guise for his conservative leanings; Justice Bradley Miller was elevated to the same court six months after Justice Huscroft to similar criticisms.
But in R. v. Ting, released January 20, Justice Miller, in his first major decision interpreting the Canadian Charter of Rights and Freedoms, upheld an acquittal of an accused person because the police had clearly violated her Charter rights. The police searched an apartment for which they did not have a warrant even though they quickly realized that their search was illegal. Moreover, the warrants they did obtain did not sufficiently describe the apartment to be searched – they were “impermissibly ambiguous.” Justice Miller concluded that the police “were not guided by the warrant, but by their personal knowledge of the premises to be searched.”
In the result, the accused’s right to be free from “unreasonable search and seizure” was seriously infringed. It would have brought the administration of justice into disrepute to have allowed the evidence obtained as a result of the searches to be used against her.
Justice Miller did not abandon his principles to reach the result in Ting, just as Justice Huscroft did not do so in Michela. Rather, he simply applied established legal principles to a fact situation. This is yet another illustration of how judicial restraint and adherence to doctrine do not inevitably produce “conservative” or “progressive” results; they merely remove a judge’s biases.