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.
“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.
“Being a defence lawyer is a very hard job,” Prof. Stuart said at the time. “If you are already feeling strapped by your job and you hear someone as important as Michael Moldaver criticizing you, you can feel pretty hurt.”
Veteran defence lawyers Alan Gold and Frank Addario adopted a different stance. “The reason most defence counsel are insulted by Moldaver’s speech is that to he failed to identify the real cause of the problem,” they wrote in a newspaper column.
“He dismissed the chronic underfunding of the justice system as irrelevant. Yet, each year lawyers and judges are asked to produce the same high quality justice with less money.”
Since Crown conferences are not open to the public, what is much less known is that Judge Moldaver has also castigated prosecutors for stretching out trials unnecessarily by fighting hard for the admissibility of marginal evidence.
In a speech to judicial colleagues in 2006, Judge Moldaver vowed not to be deterred by a backlash to his campaign for a return to trial sanity.
“We can throw up our hands in despair and cry: ‘C’est la guerre,’ or, we can come together and say: ‘We are mad as hell and we are not going to take it any more,’” he said, in a copy of his speech obtained by the Globe and Mail.
On the Court of Appeal, he frequently sits on high profile or complex cases. Earlier this year, for example, he opted to deny doctors their wish to unilaterally pull the plug on a patient they deem beyond medical help.
He also played an instrumental role in two historic cases involving convicted killers Stephen Truscott and Romeo Phillion. Both men were found to have been wrongly convicted because of faulty evidence, prosecutorial overzealousness and police error.
Judge Moldaver’s tough-on-crime reputation is partly founded in his approach to punishment. Last year, for example, he drastically increasing the sentences of the a group of terrorists convicted under new anti-terrorism legislation.
More recently, he ratcheted up the sentence of a man convicted of luring a 12-year-old girl over the Internet, a welcome decision to the Harper government that created the law.
“The offence of luring carries very real dangers – innocent children being seduced and sexually assaulted or even worse, kidnapped, sexually abused and possibly killed,” Judge Moldaver said in the case, R v Woodward.
At the same time, however, Judge Moldaver sometimes opts for leniency in cases where individuals with no history of criminality make uncharacteristic errors of judgment.
In an important case last spring, for example, he took the position that mothers who kill their infants while in the grips of a mental disturbance deserve leniency instead of automatic life sentences for murder the Crown had sought.
In legal circles, there will be considerable shock that a front-runner for the job – Ontario Court of Appeal Judge Robert Sharpe – was not one of the nominees. A perception that he too often takes a tough line against the Crown may have been his undoing.
Married three times, Judge Moldaver graduated from the University of Toronto law school in 1971. He began practicing with Mr. Greenspan two years later and was appointed to the Supreme Court of Ontario in April 1990. He was elevated to the Ontario Court of Appeal in 1995.
A one-time co-chair of the Canadian Bar Association and a director of the Advocates’ Society, Judge Moldaver is well known in judicial and legal ranks. He has an abiding interest in judicial education and is in much demand at judicial seminars and Crown Attorney education sessions.
With a report from Jane Taber.