Newly appointed judges face a steep learning curve when they take their seats at the Supreme Court of Canada. Serving for the first time on the court of last resort, they bear the unaccustomed burden of knowing there is no longer a bench above to correct their errors. The workload is immense. There are also the challenges of co-existing with eight confreres who engage in intellectual warfare, yet must maintain a collegial relationship.
Not surprisingly, rookie justices do not always immediately find their feet. Nonetheless, it is worrisome to see Justice Andromache Karakatsanis struggling to make an impact. In her 18 months on the court, she has written only three decisions on her own, none of them this year. She is a long way from pulling her judicial weight.
Another judge appointed on the same day, Justice Michael Moldaver, hit the ground running and has become a leader on the court. His CV included almost two decades on the Ontario Court of Appeal, where he served as a go-to judge on difficult or significant appeals.
Justice Karakatsanis, in contrast, served 18 months on the Ontario Court of Appeal and produced little jurisprudence of note. For the eight years before that, she had earned average marks as a trial judge. Indeed, her greatest success was as a career senior civil servant, where she served for a time as second-in-command to Jim Flaherty when he was Ontario’s attorney-general – an association that cannot have hurt her candidacy for the Supreme Court.
Justice Karakatsanis may not be destined to be a flop. Some judges need a long adjustment period. Yet her slow start lends credence to a strong feeling in the legal community at the time of her Supreme Court appointment that she was under-qualified.
The Ontario Court of Appeal was replete with strong candidates who were unaccountably passed over, including Justices David Doherty, Robert Sharpe, Eleanore Cronk, Eileen Gillese, Marc Rosenberg and James MacPherson.
The appointment process is no longer as mysterious and invisible as it once was. A short list of candidates, submitted by the federal government, is now evaluated by a screening committee. The ultimate appointee submits to questioning in the parliamentary justice committee.
Regrettably, recent screening committees have not included eminent lawyers and legal academics. That has impaired their functioning, while the justice committee is given scant time to research and prepare questions for appointees.
Canadians should not sit back complacently, accepting a flawed appointment process. Only the best of the best deserve appointment to the highest court in the land.