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Cromwell's exit seen as 'major blow' to Supreme Court

Thursday, September 29, 2016 @ 8:00 PM | By Cristin Schmitz

Court watchers called the recent departure of one of the Supreme Court’s strongest and most versatile members a “major blow” to the institution.

Thomas Cromwell, the 64-year-old Nova Scotia jurist who retired September 1, sat on 472 appeals and helped decide 1,324 leave to appeal applications, according to unpublished court statistics obtained by The Lawyers Weekly.

During nearly eight years there, he wrote 96 judgments — of which three-quarters were either for the majority (25 judgments), or a unanimous court (39 judgments) — and one quarter were dissents or concurrences.

Former Justice Cromwell’s body of work features leading judgments in both the criminal and non-criminal law spheres, including the contract law blockbuster Bhasin v. Hrynew 2014 SCC 71, which broke new ground in Canada and the Commonwealth by recognizing good faith as a general organizing principle of contractual performance.

“He was a very valuable member of the Supreme Court of Canada, and he made, I would say, an enormous contribution to our jurisprudence, with particular reference to contract law,” said Osgoode Hall Law School professor John McCamus.

“He was a very strong private law lawyer,” McCamus noted. “He decided a number of important restitution cases as well.” These included Kerr v. Baranow 2011 SCC 10, on unjust enrichment, which created a new roadmap for navigating property disputes between unmarried domestic partners.

“He also had great strength in public law and wrote a number of valuable constitutional and criminal law decisions,” added McCamus. His “very strong” academic background, derived from a dozen years as a Dalhousie University law professor, “was a source of strength in his jurisprudential writing.”

Public law professor Paul Daly of the University of Cambridge called ex-Justice Cromwell’s departure “a major blow to the Supreme Court of Canada as an institution.

“The range of his abilities is evidenced by his masterful, scholarly judgments from the areas of public interest standing (Canada (A.G.) v. Downtown Eastside Sex Workers United Against Violence Society 2012 SCC 45) to the role of torts in the commercial sphere (A.I. Enterprises Ltd. v. Bram Enterprises Ltd. 2014 SCC 12),” Daly said by e-mail. “Few judges or scholars could aspire to make lasting contributions in areas that are so diverse. His capacity to engage with, and synthesize, academic materials and jurisprudence in these cases was immense.”

Queen’s University law professor Donald Stuart, editor of the Criminal Reports, described former Justice Cromwell as “in the middle” of the spectrum of criminal law perspectives — “sometimes pro-accused, sometimes pro-state.

“Justice Cromwell will be sorely missed as a powerful and articulate force on all criminal justice issues,” Stuart said. “He brought both practical, and scholarly, experience and talent to his many judgments.”

These included: R. v. Ryan 2013 SCC 3, in which he carefully mapped out criteria for the statutory and common law defences of duress; R. v. Côté 2011 SCC 46, insisting that the new Grant test for the exclusion of evidence found in violation of the Charter be taken seriously; and recently R. v. Villaroman 2016 SCC 33, advising trial judges how to approach cases of circumstantial evidence, Stuart elaborated by e-mail.

In striking down state efforts to enlist the legal profession in Ottawa’s anti-money laundering regime last year, former Justice Cromwell also wrote a judgment that constitutionalized, for the first time, lawyers’ duty of committed representation to their clients: Canada (A.G.) v. Federation of Law Societies of Canada 2015 SCC 7.

Stuart noted “some of us were disappointed with: his pro-state positions on controls on police interrogation; [the majority] insisting in M.M. v. U.S.A. 2015 SCC 62, that tests for committals and extradition cannot consider affirmative defences; and in [the majority] placing few controls on police searching cellphones incident to arrest in R. v. Fearon,” 2014 SCC 77.

University of Ottawa constitutional law professor Carissima Mathen said the judge displayed a willingness to go his own way from the time he joined the court in 2009. “One of his earliest decisions was to cast the swing vote” in the Reference re Assisted Human Reproduction Act, 2010 SCC 61, Mathen said. “He agreed with four of his colleagues that numerous sections of the Assisted Human Reproduction Act were ultra vires Parliament, but on a narrower basis affecting few provisions. The decision showed him to be a cautious jurist who valued restraint.”

Mathen said restraint also carried the day in Fearon, when the court’s majority declined to craft a cellphone exception to the common law police power to conduct incidental searches on arrest. “He did, however, set out a framework to govern such searches that recognized the intense privacy interest in such devices,” she noted by e-mail.

The judge’s 9-0 Downtown Eastside ruling relaxing the rules for granting public interest standing is “a very important part of his judicial legacy,” Mathen added. “He recognized that, in a country committed to constitutionalism and the rule of law, public interest litigants play a crucial role in holding the state to account, and that role is undermined by a too-rigid test for standing.”

Litigator Eugene Meehan of Ottawa’s Supreme Advocacy said Justice Cromwell was the kind of well-prepared judge lawyers want to appear before. “Basically telling you: ‘I’ve read all your material, I don’t need to hear you on issue A or B, but tell me about C.’ He’d cut right to it because he had the issues figured out in advance,” Meehan said by e-mail.

Osgoode Hall Law School constitutional law professor Jamie Cameron said former Justice Cromwell’s judgments were not usually headline grabbers. He “took a more modest, more prudential approach — much in the way of the common law — sticking to his principles but fashioning solutions that could move the law forward in measured steps,” she said. “I have great respect for that approach because it reflects deep respect for the law and its development.”

His contributions to the jurisprudence also lent “a vital element of balance to the court in recent years,” Cameron added. She pointed to his concurring opinion in Trial Lawyers Association of B.C. v. B.C. (A.G.) 2014 SCC 59. The majority adopted a novel interpretation to read into the Constitution a right of access to justice for low-income litigants. Yet Justice Cromwell — a leading champion of access to justice — arrived at the same result relying on the common law, without constitutionalizing the entitlement.

Cameron noted by e-mail, “Justice Cromwell was a very collegial member of the court, able to co-write opinions with many of the other justices.”

“Without Justice Cromwell, the court will lose an important academic voice,” Daly added, noting only two remaining judges (Beverley McLachlin and Russell Brown) were full-time law professors. “It also loses significant expertise in administrative law — on which Justice Cromwell had firm views about the important role of the courts.”

Filling former Justice Cromwell’s shoes is “an unenviable task,” he concluded.