A pioneering method Prime Minister Stephen Harper used to select Supreme Court judges and expose them to parliamentary scrutiny has shone a spotlight on the frustrations of a controversial work-in-progress.
Legal experts predict that a hearing on Wednesday to screen Mr. Justice Michael Moldaver and Madam Justice Andromache Karakatsanis will likely be neither illuminating nor satisfying to anyone craving a transparent process.
MPs on the parliamentary committee that will examine the nominees are likely to be genteel and only modestly probing, experts say, given the reality that all three main federal parties helped prepare the short list of candidates for Mr. Harper.
Donald Stuart, a Queen's University law professor, said the hearing is a worthwhile nod in the direction of openness, but will amount to little more than "a meet-and-greet session."
"There is little prospect of the committee members asking searching questions," agreed University of Toronto law professor Jacob Ziegel. "The committee chair will do his or her best to ensure it doesn't happen."
Judge Moldaver is vulnerable in one key area – his inability to speak French. Most Quebeckers believe a unilingual francophone would never be appointed to the court, and that the opposite should be equally unthinkable, University of Ottawa law professor Sébastien Grammond said.
An all-party search committee whittled a list of 12 names that the government supplied down to six. Bruce Ryder, a professor at Osgoode Hall Law School, said the process imparted an illusion of accountability.
"It was carefully choreographed by the government to preserve its control over who gets appointed," Prof. Ryder said. "Was merit their exclusive concern? We'll never know. The entire process takes place behind closed doors. The current appointments process is deeply flawed because it leaves too much room for partisan influence."
Like any organization considering new hires, the government was required to balance ability, demographic considerations and intangibles such as collegiality. What made the task unique was the imperative to stock the court with top-calibre legal intellects capable of working under intense pressure.
Judge Moldaver's selection was widely accepted as meritorious. However, there has been a swell of discontent in the legal community about the selection of Judge Karakatsanis.
"We have good reasons to doubt whether Justice Karakatsanis would have emerged as a top choice in a process based exclusively on merit," Prof. Ryder said. "One reason is her relative lack of experience compared to her more senior colleagues. The other is her political connections with members of the Conservative cabinet. One cannot avoid the suspicion that, ultimately, her selection was determined by partisan considerations rather than merit-based factors."
In a province such as Ontario, only two or three jurists from each generation can ascend to the court. Their window of opportunity lasts from the age of about 50 until they reach 65.
As a result, there will be no next time for a renowned group of Ontario Court of Appeal judges widely seen as eminently qualified – a group that includes Mr. Justice Robert Sharpe, Mr. Justice David Doherty, Madam Justice Karen Weiler, Mr. Justice Marc Rosenberg and Mr. Justice James MacPherson.
Prof. Stuart noted that Judge Rosenberg and Judge Doherty are virtually without peer when it comes to criminal law – a vital need on the Supreme Court bench.
Carissima Mathen, a law professor at the University of Ottawa, said that Judge Karakatsanis is a refreshing choice and may prove to be a top-notch judge.
"I am a fan of recognizing different sorts of experience as helpful to the judicial function," she said. "I think Justice Karakatsanis and Justice Moldaver were chosen for different strengths and experiences – and I don't think there's anything wrong with that."