PERHAPS IT’S IN RESPONSE to the law-and-order agenda of the Harper Conservatives, and maybe it’s a sign of things to come. Whatever the case, a Supreme Court of Canada judgment released last Friday must be sending alarm bells ringing among Canadians concerned at protecting our civil liberties.

For years now, we’ve become accustomed to politics dominating the United States Supreme Court, a classic example being when that court voted 5- 4 to effectively put George W. Bush in office by barring recounts in Florida that would likely have given the swing state to Al Gore.

But in Canada we’ve had a long tradition of appointments to our highest court being based on qualifications rather than political inclinations. It wasn’t at all surprising when Beverley McLachlin, appointed to the court by Conservative prime Minister Brian Mulroney, was picked by Liberal prime minister Jean Chrétien 10 years ago as its first female chief justice.

However, for the first time in memory we have as our prime minister someone who has been openly critical of the supposed liberal bias of our judiciary, and it may well be that Stephen Harper has already managed to move the court his way, in part through two appointments.

Just a week after the court seemed to be keeping to its tradition of emphasizing the importance of our Canadian Charter of Rights and Freedoms, by holding it appropriate for courts to award damages for serious Charter breaches, on Friday we saw four of seven judges holding that no breach was involved when nine masked and heavily armed police officers broke into a Calgary house on a tip that it contained narcotics.

The trial judge having found no breach of Charter Section 8’s guarantee of freedom from unreasonable searches, that ruling has now been upheld by two of three Alberta Court of Appeal judges and four of seven Supreme Court justices.

Interestingly, the majority decision was written by the newest appointee, Justice Thomas Cromwell, and concurred in by the Chief Justice and Justices Louise Charron and Marshall Rothstein, Justice Rothstein being the other Harper appointee.

The strong dissent was written by Justice Morris Fish, with Justices Ian Binnie and Louis LeBel concurring.

Missing from the panel were its most liberal voice, Rosalie Abella, and Quebec’s Marie Deschamps.)

As is often the case when appellate judges can’t reach a consensus, the best quotes are in the dissenting judgment.

For the majority, Justice Cromwell said the main question for the court to answer when conducting such a judicial review was whether the police had reasonable grounds for doing what they did, adding: “Three things must be kept in mind throughout these reviews.

“First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. . . .

“Second, the police must be allowed

certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require. . . .

“Third, the trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference on appellate review.”

Concluding that the information police had justified the tactics used, he found the search reasonable and dismissed the appeal.

In dissent, Justice Fish saw things differently. Before noting that in such drug raids police are authorized to use only “as much force as is necessary in the circumstances,” he described what had happened:

“Loaded weapons in hand, nine masked members of a police tactical unit smashed their way into the appellant’s home in a residential Calgary neighbourhood. They forced the appellant’s brother, who has a mental disability, face-down to the floor and cuffed his hands behind his back. They dented the front door with their battering ram and broke the door frame, destroyed some of the interior doors, pried locks off a garage door and rendered the garage door itself inoperable. . . .”

He went on to find that the police “had no reason to believe that anyone at all who might be a threat to their safety was then in or near the dwelling. More specifically, they had no reason to believe that anyone in the house was armed or dangerous. They made no mention of weapons in their Information to obtain the search warrant. They alleged no grounds to believe that any would be found on the premises.”

In those circumstances, should the cocaine found have been admitted? Concluding that it shouldn’t, he wrote: “The issue here is whether society’s interest in the adjudication of this case on its merits outweighs the interests of society, in the longer term, in discouraging routine disregard by the police of constitutional, statutory and common law safeguards designed to protect the sanctity of a person’s home.”

We hasten to agree that it doesn’t.