The face of the Supreme Court of Canada is poised to change dramatically as the Harper government puts an indelible stamp on the court by naming two new nominees.
CTV reported late Sunday that Stephen Harper would on Monday announce the appointment of Madam Justice Andromache Karakatsanis and Mr. Justice Michael J. Moldaver, both judges on the Ontario Court of Appeal.
The new judges will bring to four the number Mr. Harper has appointed, putting him within easy reach of refashioning a court that gets the final say on his tough-on-crime political agenda.
Judge Karakatsanis, who is fluent in English, French and Greek, would be the Supreme Court’s first Greek-Canadian judge. Her appointment would forestall feminist criticism by maintaining the court’s complement of female judges at four.
Judge Moldaver’s nomination would be particularly applauded in the law-enforcement community.
A judge who typically does not believe in striking down legislation, Judge Moldaver has publicly decried a proliferation of litigation under the Charter of Rights. Both factors make him an ideal nominee for a government with an ambitious law and order agenda.
While neither appointee would comes as a surprise, both are likely to come under criticism for certain perceived vulnerabilities.
Having spent her career as a top civil servant, Judge Karakatsanis has vast administrative experience but little in the realities of a law practice. Her career on the bench has been short,and she has produced little in the way of significant jurisprudence.
Her nomination is also likely to come under fire because of her close connections to powerful Conservatives – most notably, Finance Minister James Flaherty, with whom she worked closely when he was Ontario’s attorney-general.
Judge Moldaver’s inability to speak French is sure to provoke a degree of controversy, as will a public stance he has taken against courtroom strategies he perceives as wasting court resources and bringing the Charter of Rights into disrepute.
The search for the nominees has been slow, forcing the court to launch its fall session with a seven-judge bench. With important cases lying just ahead, including an aboriginal sentencing case Monday and a case involving the right of Islamic witnesses to wear a niqab while testifying, the need to reach a full complement is acute.
Nominees will have to complete one final stage: a parliamentary committee hearing during which the nominees will respond to questions from MPs.
It will likely take at least two weeks before the hearing can be held, meaning that the two new judges will not take their places until well into November.
Since the parliamentary committee has no power to reject the nominees, their ultimate appointment is virtually certain.
Judge Binnie and Judge Charron announced their retirements last May, but the Department of Justice did not submit its top-secret list of 12 semi-finalists until late August.
Nine of those on the preliminary list were Ontario Court of Appeal judges, according to legal sources. The other three were lawyers in private practice or lower-court judges.