Prime Minister Stephen Harper has taken a big step toward remodelling the Supreme Court of Canada by selecting two Ontario Court of Appeal judges to fill vacancies on the top court.
His selections – Mr. Justice Michael Moldaver and Madam Justice Andromache Karakatsanis – are the third and fourth judges the Prime Minister has chosen for the nine-judge court.
With three more retirements on the way by 2015, Mr. Harper has an opportunity to craft a court that keeps its hands off his legislative priorities, including the Tories’ tough-on-crime agenda.
Judge Moldaver and Judge Karakatsanis are seen as relatively conservative judges who will steer clear of using the Charter of Rights to strike down legislation.
“These are clearly small-c conservatives and they will do little to change the general direction of the court – other than to consolidate its right-centre orientation,” said Allan Hutchinson, a law professor at York University’s Osgoode Hall Law School.
Prof. Hutchinson said that Judge Moldaver’s track record is long and easily discernible, whereas Judge Karakatsanis’s is something of a mystery.
“Their nominations will go through, but Karakatsanis could be challenged as she has little to recommend her as a Supreme Court of Canada judge, other than her political connections,” Prof. Hutchinson said. “She has no real judicial experience and has done little to make her mark on the Ontario Court of Appeal.”
As a career senior civil servant, however, 56-year-old Judge Karakatsanis will bring an awareness of how policy choices are developed and reflected in legislation, which would be considered an asset to the court.
Her appointment would also maintain the complement of female judges at four. Fluent in English, French and Greek, she will also be the first Greek-Canadian judge to be appointed to the Supreme Court.
The unilingual Judge Moldaver is steeped in criminal law. Known to his colleagues as friendly and self-effacing, he is given to straight talk. His questions during appeal hearings are often blunt and drive straight to the heart of what is bothering him. His opinionated, forthright nature is also sure to keep things lively at internal case conferences that are held after each hearing.
Judge Moldaver, 63, would become the fourth Jewish judge to the current court. Prior to the 1970s, it had never had a Jewish member.
His criminal-law experience will help fill a void created when Mr. Justice Ian Binnie and Madam Justice Louise Charron retired.
“He brings to the courts a law-and-order orientation that will not always play out the way some Conservatives might hope,” Prof. Hutchinson remarked.
Judge Moldaver has been vocal in his criticism of prosecutors and defence lawyers who waste the time of the courts, upsetting many in the defence bar.
“He brings a wealth of knowledge on all matters criminal and is deeply committed to fairness,” said Queen’s University law professor Donald Stuart. “But recently, he has not favoured Charter rights for accused in his judgments. A 2006 speech to the defence bar suggested that too many frivolous Charter motions were clogging the courts. This overstated matters and was alarmingly one-sided coming from a sitting judge.”
However, several defence lawyers expressed hope that his strong judicial record will win out over any antipathy he has developed toward Charter litigation.
“He has always been an ardent defender of the factually innocent,” said Paul Burstein, president of the Criminal Lawyers Association. “Many of his early judgments on the Court of Appeal exhibited a courageous defence of civil liberties and an appreciation of their importance to a free and democratic society.”
The government’s search to fill the vacancies has meandered along since last May. Perhaps stung by criticism of its lethargic pace, Mr. Harper stepped on the gas Monday with an announcement that the nominees will be questioned in an ad hoc committee of MPs on Wednesday.
Since the committee has no power to reject the nominees, the appointments are virtually certain.
Mr. Cotler said that it will be hard for critics to accuse Mr. Harper of cronyism since it was a Liberal government that appointed Judge Moldaver to the Ontario Court of Appeal in 1995. Similarly, he said, Judge Karakatsanis was put on the Ontario Superior Court in 2002 by a Liberal government.
“The Ontario Court of Appeal had an embarrassment of riches, so it was hard to go wrong,” Mr. Cotler said. “I do not think they will tilt the law in any particular direction.”