Two Supreme Court of Canada nominees will become test subjects Wednesday in an experiment aimed at opening up the mysterious process in which judges are chosen for the top court.
After just a couple of days of feverish preparation, Mr. Justice Michael Moldaver and Madam Justice Andromache Karakatsanis will answer questions from MPs about their background and judicial temperaments at a three-hour committee session. It is only the second time the procedure has been used. The first was in 2006, when Mr. Justice Marshall Rothstein was subject to a gentle series of questions prior to his appointment.
Legal experts predict that the session will not be particularly illuminating nor satisfying anyone who craves a transparent appointment process.
In reality, all three main parties unanimously prepared a short list of six candidates Mr. Harper used to make his selections, giving them a sense of investment in the names on the list.
Donald Stuart, a Queen’s University law professor, said that the hearing is a worthwhile nod in the direction of openness, but will amount to little more than, “a meet-and-greet session.”
“There is little prospect of the committee members asking searching questions,” agreed University of Toronto law professor Jacob Ziegel. “The Committee chair will do his or her best to ensure it doesn’t happen.”
Still, Judge Moldaver can expect to be grilled in one key area: his inability to speak French. Most Quebeckers believe strongly that a unilingual Francophone would never be appointed to the Court and that the opposite should be equally unthinkable, said University of Ottawa law professor Sébastien Grammond.
“I think many people are disappointed that a unilingual candidate was chosen, especially given the fact that everyone knows there were other equally or more qualified judges who were bilingual and who could have been appointed,” Mr. Grammond said. “I believe that understanding French is part of the competence requirement, rather than being in opposition to competence.”
The Quebec Bar Association added fuel to the volatile issue on Tuesday when it asked the Harper government to reconsider its appointment of Judge Moldaver. It said that Canadian citizens have the right to expect that they will be understood in the Supreme Court regardless of what official language they speak.
Mr. Grammond said that one-third of the cases heard by the Supreme Court are entirely or partially in French. A unilingual judge cannot the lower court judgments in those cases nor factums that are written in French, he said, since they are never translated. Instead, he must rely on summaries prepared by their law clerks.
The committee is scheduled to meet from 3:30 p.m. ET until 7 p.m. ET on Wednesday. It will commence the hearing with an introduction by Peter Hogg, a constitutional scholar, who will discuss the significance of the hearing and its ground rules. The MPs will then take turns asking questions to the two nominees.
Judge Moldaver and Judge Karakatsanis will likely be sworn in early next week in private, leaving them in a position to hear their first case before the week is over.
Before handing its list of finalists to Mr. Harper two week ago, the all-party search committee had whittled it down from a list of 12 names supplied by the government. Prof. Ryder said that the process had imparted a false illusion of accountability.
“It was carefully choreographed by the government to preserve its control over who gets appointed,” he said. “Was merit their exclusive concern? We’ll never know. The entire process takes place behind closed doors. The current appointments process is deeply flawed because it leaves too much room for partisan influence.”
While Judge Moldaver’s selection was widely accepted as being meritorious this week, there has been a swell of discontent in the legal community about the selection of Judge Karakatsanis.
“We have good reasons to doubt whether Justice Karakatsanis would have emerged as a top choice in a process based exclusively on merit,” Prof. Ryder said. “One reason is her relative lack of experience compared to her more senior colleagues. The other is her political connections with members of the Conservative cabinet. One cannot avoid the suspicion that ultimately her selection was determined by partisan considerations rather than merit-based factors.”
In a province such as Ontario, only two or three jurists from each generation can ascend to the Court. Their window of opportunity lasts from the age of about 50 until they reach 65.
As a result, there will be no ‘next time’ for a renowned group of Ontario Court of Appeal judges widely seen as having been eminently qualified, a group that includes Mr. Justice Robert Sharpe, Mr. Justice David Doherty, Madam Justice Karen Weiler, Mr. Justice Marc Rosenberg, Mr. Justice James MacPherson and Mr. Justice John Laskin.
Prof. Stuart noted that Judge Rosenberg and Judge Doherty are virtually without peer when it comes to criminal law – a vital need on the Supreme Court bench.
It appears unlikely that MPs raise the question of candidates who were rejected in favour of Judge Moldaver and Judge Karakatsanis.
Carissima Mathen, a law professor at University of Ottawa, said that Judge Karakatsanis was a refreshing choice and she may prove to be a top-notch judge. “I am a fan of recognizing different sorts of experience as helpful to the judicial function,” she said.
“If the best criterion for Supreme Court-worthiness is appellate court experience, then yes, there are others who clearly were better qualified,” Prof. Mathen added. “But I think Justice Karakatsanis and Justice Moldaver were chosen for different strengths and experiences – and I don’t think there’s anything wrong with that.”