With the old guard disappearing into retirement, and a new breed of cases coming to the fore, the Supreme Court is entering a period of dramatic change: By the end of 2014, only one judge – Chief Justice Beverley McLachlin – will have spent more than a decade on Canada’s top bench.
The centres of influence are shifting, and fast.
All eyes then are on the two rookies who will soon rank high in seniority. Both were appointed on the same day in late 2011, and both were contentious choices.
Mr. Justice Michael Moldaver, a veteran of the Ontario Court of Appeal, arrived with unquestioned credentials and a criminal-law pedigree, but was viewed by the defence bar as a cantankerous opponent of Charter rights.
Madam Justice Andromache Karakatsanis, who spent most of her career as a senior civil servant in Ontario (eight years as a trial judge and 18 months on the Ontario Court of Appeal), was viewed as less qualified than other candidates.
Their contrasting evolution couldn’t be more stark.
Supreme Court justices tend to be measured by the quantity and calibre of their writing. Those commanding the most respect write often, crafting clear and authoritative reasons that attract colleagues to help form a majority. Of the 66 substantial decisions it rendered last year, the court spoke unanimously in 65 per cent of the cases.
In his first full year, Judge Moldaver wrote eight majority decisions – most of them in the criminal-law field – and co-wrote three more.
Judge Karakatsanis has lagged far behind. With three majority decisions and one she co-wrote, she had the lowest rate of productivity on the court.
It’s a marked difference.
“The fact that [Moldaver] is off to a fast start may be explained by his prior Court of Appeal experience, where he was a prolific writer,” noted Dalhousie University law professor Wayne Mackay.
More important than being prolific, though, is the need to give clear direction to lawyers and lower-court judges. Judge Moldaver was the only judge last year who was in the majority camp for all 75 decisions, said Mahmud Jamal, a Supreme Court expert at Osler, Hoskin and Harcourt LLP. “It places him solidly at the centre of the court,” Mr. Jamal said.
Judges first tip their hand at post-hearing conferences where they offer a tentative position. Judges may volunteer or be assigned by the chief justice to write for the probable majority. Should a dissenting faction emerge, one of them may undertake to draft minority reasons.
But, swaying a majority is not the be-all, end-all. Some judges on previous courts – when spirited dissents were more common – are remembered for adopting independent approaches that challenged the convictions of the majority.
“Dissenting opinions remind us that these are not easy issues,” said Jamie Cameron, a law professor at York University’s Osgoode Hall Law School.
The court’s leader, Chief Justice McLachlin, continues to write prolifically and remains a mainstay of the court. However, other judges will see their influence wax or wane this year.
Mr. Justice Louis LeBel , an intellectual pillar of the court, is a reflective intellectual who typically stands up for the rights of the accused. However, he faces mandatory retirement next year. Time is even shorter for the court’s other staunch defender of criminal rights, Mr. Justice Morris Fish, who must retire this fall.
Madam Justice Rosalie Abella, an unabashed social reformist with an activist streak, has surprised many court watchers by regularly attracting a majority to her viewpoint.
“She is able to command majority support on significant cases, but she also is not at all inhibited about standing on her own,” Prof. Cameron said.
However, Judge Abella is prosecution-oriented. Depending on who replaces the retiring justices, the court is on the verge of being left without a judge who will advocate for the rights of the accused.
Mr. Justice Marshall Rothstein has become the court’s resident expert on administrative law and its most conservative member. He is influential in cases involving issues such as copyright and regulation.
After four years on the court, however, Mr. Justice Thomas Cromwell remains an enigma who has yet to identify himself with a particular field of law or to write penetrating judgments. “He has really not yet found a voice that is particularly noteworthy,” Prof. Cameron said.
The hallmark of the McLachlin court is its reliable, “workmanlike” manner, Prof. Cameron said.
“When I read decisions, I don’t get the sense that the court is wrestling with difficult decisions of principle or struggling with the monumental issues of the day,” she added.
However, with key appeals on its doorstep involving the constitutionality of prostitution laws, assisted suicide and the mandatory minimum prison sentences, that may not be the case for long.
SUPREME COURT JUSTICES WHO WROTE DECISIONS IN 2012
Michael Moldaver – 9 1/2 majority, none in dissent.
Beverley McLachlin – 9 majority, 2 1/2 in dissent.
Louis LeBel – 8 1/2 majority, 4 1/2 in dissent.
Rosalie Abella – 8 1/2 majority, 2 1/2 dissent.
Marie Deschamps – 8 majority, 1 in dissent.
Marshall Rothstein – 6 1/2 majority, 3 in dissent.
Thomas Cromwell – 5 1/2 majority, 4 1/2 in dissent.
Morris Fish – 5 majority, 3 in dissent.
Andromache Karakatsanis – 3 1/2 majority, None in dissent.
“By the Court” (substantial judgments) – 4;
Brief reasons – 7.
Compiled by Kirk Makin; Co-written decisions count as half.
GOODBYE CHARTER, HELLO TECHNOLOGY AND PRIVACY
After assembling a collection of last year’s Supreme Court of Canada decisions involving the Charter of Rights, law professor Jamie Cameron was startled.
She had located just 10 judgments; one of the lowest totals since the Charter came into being in 1982.
“When the Charter loses its profile at the court, it also loses its profile in public discourse,” Prof. Cameron, a Charter expert, opined.
Some court watchers assert that the most momentous Charter issues have been resolved. Others argue that Charter litigation is so expensive, few can argue all the way to the Supreme Court – especially at a time when judges are generally cool to the idea of striking down laws.
However, Charter jurisprudence is being replaced by cases in a broad array of legal fields, said Ottawa lawyer Eugene Meehan.
He noted a host of important cases involving new technology in the areas of copyright and computer privacy.
Editor's note: Madam Justice Andromache Karakatsanis spent 18 months at the Ontario Court of Appeal before joining the Supreme Court. An earlier version of this article contained incorrect information.