Prime Minister Stephen Harper has moved to fill two Supreme Court of Canada vacancies by nominating Mr. Justice Michael Moldaver, an outspoken Ontario appellate judge with vast experience in criminal law, and a former senior civil servant – Madam Justice Andromache Karakatsanis.
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 will be particularly applauded in the law enforcement community. It will also score points for Mr. Harper in the Jewish community, which he has courted politically.
“Both Justice Karakatsanis and Justice Moldaver’s candidacies were examined through a comprehensive process,” said Prime Minister Harper in a release. “Madam Justice Karakatsanis and Mr. Justice Moldaver are exceptional candidates who have the skills and qualifications necessary to serve Canadians as judges of the Supreme Court of Canada.”
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.
The slow-paced search to replace retiring judges Ian Binnie and Louise Charron must go through one final stage. They will appear before a parliamentary committee to answer questions from MPs on Wednesday.
The Parliamentary committee that will question them has no power to reject the nominees, so their appointment is virtually certain.
While neither appointee 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 or memorable 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.
Judge Binnie had been appointed directly from a thriving practice at a Bay Street law firm. The fact that the court will now have no lawyers coming direct from practice will be a cause of dismay to those who believe the Court tends to be out of touch with the realities of practice.
Judge Charron was one of the court’s only criminal law experts, while Judge Binnie acquired considerable expertise in the area. The fact that only one of their replacements is steeped in criminal law constitutes a modest setback for the court.
Replacing Judge Binnie and Judge Charron with the two new nominees will not create any seismic shifts in the Court, said Allan Hutchinson, a law professor at York University’s Osgoode Hall law school. “These are clearly small ‘c’ conservatives and will do little to change the general direction of the court, other than to consolidate its right/centre orientation,” he said.
Justice Karakatsanis is largely an unknown quantity, Prof. Hutchinson said. “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,” he said. “She has no real judicial experience and has done little to make her mark on the Ontario Court of Appeal.
“Her appointment is a clear Conservative appointment with a nod to the women and ethnic lobby, but it is hard to imagine her doing much progressive for those groups.”
Prof Hutchinson said that Judge Moldaver has a strong record on criminal law and is a natural replacement for someone with Judge Charron’s conservative leanings: “He brings to the courts a law-and-order orientation that will not always play out the way some Conservatives might hope,” he said.
Adam Dodek, a University of Ottawa law professor, said that the two appointees will not tilt the balance of the Court in any particular direction.