“These are solid, stay-the-course, appointments for the PM,” Prof. Dodek said. “These are two judges with stellar reputations, first class intellects and strong judicial records.”
Judge Karakatsanis began practicing law in 1982 after spending a year as law clerk to the Chief Justice of Ontario. She worked in criminal, civil and family litigation in a small Toronto firm.
From 1988 to 1995, she was chair and chief executive officer of the Liquor Licence Board of Ontario.
Her next administrative role was as Secretary of the Ontario Native Affairs Secretariat. Two years later, in 1997, she became deputy attorney-general.
In 2000, she rose to be Secretary of the Ontario Cabinet and Clerk of the Executive Council during the Mike Harris Conservative government. As the senior public servant in Ontario, she held a dominant leadership position over the province’s deputy ministers and the public service.
Judge Karakatsanis was appointed to Superior Court of Ontario in 2002 and served as Administrative Judge for the Small Claims Court in Toronto. She was elevated to the Ontario Court of Appeal last year.
Judge Karakatsanis has also been actively involved in the administrative justice education and reform issues.
In contrast to Judge Karakatsanis, Judge Moldaver – a former law partner of legendary defence lawyer Edward Greenspan – has no apparent connections to the Conservative government.
Known to his colleagues as friendly, self-effacing and given to straight talk, Judge Moldaver’s questions during appeal hearings are often blunt and drive straight to the heart of what is bothering him. As a Supreme Court judge, he would be a commanding presence in the courtroom, frequently interjecting with incisive questions and to prod lawyers toward key legal points.
Any opposition to Judge Moldaver’s appointment is likely to come from the defence bar, which has been stung by his allegations that some defence lawyers elongate trials in order to milk legal aid programs.
The defence bar accuses Judge Moldaver of harbouring overinflated fears about violent crime and inaccurately portraying police as handcuffed by evidentiary rules.
“Believe it or not, I worry about the public loss of respect for the Charter,” he said at a legal symposium in 2009, citing cases where society is effectively punished for the misdeeds of overzealous police officers.
His mission to fight courtroom inefficiencies commenced about five years ago, when Judge Moldaver lashed out at long Charter motions and accused some defence counsel of “pilfering precious legal aid funds,” and of hijacking trials that end up in long-running constitutional battles over evidence.
Paul Burstein, president of the Criminal Lawyers Association, said that Judge Moldaver’s positive contributions to criminal law must be kept in mind.
“He has always been an ardent defender of the factually innocent,” Mr. Burstein said. “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.”
Judge Moldaver developed a distinct ideology in recent years that unfairly maligned defence counsel and their responsibility for overly-long trials, he said: “Hopefully, we will now see a return to his earlier way of thinking about criminal justice and the Charter.”
Mr. Burstein said that Judge Karakatsanis remains an unknown quantity when it comes to civil liberties and criminal justice. In one of her few significant decisions, Mr. Burstein said that Judge Karakatsanis spoke strongly in favour of privacy rights when it comes to material in computers.
“It was unfortunately tempered by compromise on the judicial enforcement of that right,” he added.
Coming at a time when defence counsel felt they have been scapegoated for the legal-aid system’s continuing woes, the defence bar denounced Judge Moldaver’s criticisms as an unmeasured rant that was replete with inaccuracies and false stereotypes.
How could a one-time defence lawyer be so hard on his own? Queen’s University law professor Don Stuart offered a theory that his practice had been composed largely of blue-chip clients, setting it apart from the world most defence lawyers inhabit.