They were a study in contrasts – one Supreme Court nominee confidently surfing a wave of questions from a parliamentary committee while the other struggled with unexpected turbulence.
Madam Justice Andromache Karakatsanis emerged relatively unscathed from a parliamentary hearing to screen her candidacy Wednesday, but Mr. Justice Michael Moldaver worked hard to defuse tough questioning about his outspoken views on the Charter of Rights and his inability to speak French.
In a sign that an experimental screening process may grow more spirited as it evolves under the Harper government, Judge Moldaver attempted to disarm MPs with self-effacement.
He apologized several times, professed a love for French culture and language – and chastised himself for “squandering” the chance to learn the language in high school. Litigants have every right to want to try a case in their native tongue, Judge Moldaver said.
“All I can say is that I will do everything in my power to become proficient,” he said.
In a memorable exchange, New Democratic MP Joe Comartin brushed off Judge Moldaver’s assurances and took aim straight at the only other judge to appear before a parliamentary committee – Mr. Justice Marshall Rothstein.
“Maybe it’s a case of once bitten, twice shy; but I heard the same commitment from him,” Mr. Comartin said. “That was five years ago, and Justice Rothstein is still unable to conduct any hearings in French.”
Mr. Comartin also took a swipe at Judge Moldaver by contrasting him to his fluent co-nominee. “Was there any advantage Justice Karakatsanis had in learning French that was not available to you?” he asked.
Each nominee spoke of his humble roots: Judge Karakatsanis as the daughter of Greek immigrants who opened a restaurant; Judge Moldaver as the son of a scrap-metal dealer and a homemaker-mother.
The toughest questions for Judge Karakatsanis pertained to her scant experience as an appellate judge. Speaking in fluent French, she emphasized her deep knowledge of the policy-development process in the civil service and said it will be an asset to the court.
Critics had warned that the hearing would be a highly choreographed affair that would fail to challenge the appointees or get at the reality of why they were chosen by Mr. Harper. But the questions were pointed, nonetheless.
MPs addressed the lack of transparency in the appointment process, the high cost of litigation, and the toughly worded accusations that Judge Moldaver has made in the past about inadequate lawyers cheapening the Charter of Rights with runaway trials and hopeless legal motions.
Judge Moldaver insisted that he is no “Charter-basher.” He said that he supports restrained lawyers who help their clients resolve their cases in the speediest and least-damaging way.
Every needless Charter motion ties up courtrooms and frequently bleeds away precious legal aid funds, he said.
Judge Moldaver said his years as a criminal lawyer and judge have taught him that jurors are intelligent people who should not be patronized; that police are courageous professionals who need support and clear rules from the courts; and that laws crafted by conscientious legislators should only be struck down when they clearly violate the Charter.
In their own words
On the secrecy of selecting Supreme Court judges
“This is your process, but I just ask you to consider there are feelings and sensitivities out there to be taken into account before you say: ‘Let's open all of this up.’ ”
On his so-called reputation for discouraging Charter challenges
“With the greatest respect, that is completely wrong. All I ever really wanted to say was: Think about these Charter motions. I have seen criminal trials go from two-day murder trials in the 1970s to seven months or even years long. … I just don’t like abuses.”
On the tension between individual and collective rights
“Often, you can respect all values without in any way losing an important value. There is no hierarchy of values. You look at each value in the context of the whole.”
On how her public-service career influenced her work on the bench
“Having exposure to how the law works in very different ways has been a gift to me. … Having a better understanding of how laws are made, the care that goes into it.”
On her nomination over more experienced jurists
“I have to say that I feel very humbled. Any one of our colleagues on the Ontario Court of Appeal would have been fabulous. I acknowledge that I haven’t been on the Court of Appeal as long as I would have liked. … Sometimes people have been appointed to the Supreme Court who had not been judges at all.”
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