SCC Appointments

Wednesday, October 19, 2011

Ok – I am officially annoyed. There has been a lot of froth and fury over the latest two appointments to the Supreme Court (oops, sorry, “nominees”) and in the midst of some very legitimate criticism I think some people have gone a bit too far. This renders me in the odd position of defending the choices of a government whose overall approach to the judicial function is one which I reject.

First, some background. On Monday, the Prime Minister announced that, after receiving a (confidential) short list of six names from an ad hoc committee of MPs (with a majority of Conservatives) he had decided to nominate Justice Michael Moldaver and Justice Andromache Karakatstanis to fill the vacancies left by Ian Binnie and Louise Charron. Both currently sit on the Ontario Court of Appeal: Justice Moldaver since 1995, Justice Karakatstanis since 2010. Justice Moldaver is a noted criminal law specialist (of whom there are a number on the OCA) who made waves in 2006 with a speech pointedly criticizing the defence bar for mounting inflated Charter challenges to drag out criminal trials. Justice Karakatstanis is much less known, at least among the legal community, but she had a long and successful career in the civil service (including a stint as Deputy Attorney-General) before being appointed to the Ontario Superior Court of Justice by Prime Minister Jean Chretien in 2002.

When I first heard the news, I will admit that the names were not ones I had expected. Yet, these are both members of an eminent court of appeal, with broad and varied experience in the law. Given comments from the Conservatives over the last six years I was relieved that the Prime Minister appeared to stick to more trodden paths and not choose this moment to make a “statement” by appointing a radically conservative jurist (or lawyer) who, say, rails against the living tree theory.

It didn’t take long, though, for the grumbling to start. Justice Moldaver is criticized for that speech, and for tilting against the rights of the accused (which, aside from being an overgeneralization, obscures the fact that he hardly operates on his own, but must persuade a majority of his colleagues in order to prevail). Justice Karakatstanis is openly criticized as lacking merit, or, at least, not being as good as some of her colleagues. Names like David Doherty and Robert Sharpe are openly offered as far superior choices.

This is a neat trick, for it is difficult to respond without appearing to diss another jurist. Who on earth wants to attack Bob Sharpe? Certainly not me. May I just say, though, that “merit” is a subtle category not nearly as capable of such rigid labelling as some of my colleagues seem to suggest? And that “merit” in the sense of “best qualified to serve on the Supreme Court” is even more so?

In a sense, we are all trying to read tea leaves. It is difficult to know how, exactly, any individual will fare in the Supreme Court’s rarified corridors. There have been “superstars” on paper who turned out to be duds, or at least, not nearly as influential as we might have wished. And, of course, there are those candidates who, against the critiques I have heard over the last few days, likely were not the obvious choice but who had such an impact it is difficult to imagine the Court without them. Gerald Le Dain. Bertha Wilson. Ian Binnie. John Sopinka. Ivan Rand (appointed directly from government to the position of Chief Justice!)

And so, against the critiques of the process (with which I heartily concur) I issue a plea for a slightly broader understanding of what makes a truly great judge, and an acknowledgment that, in the end, we simply will have to wait; that judges can surprised, excite and disappoint in equal measure; and do not exist as neat categories of legal excellence.

Carissima Mathen is Professor at the University of Ottawa Faculty of Law.
Designed by Rachel Gold.