The Verdict is In

The worst part about the Supreme Court appointments is learning to spell 'Karakatsanis'. That, and the process that got us here.

Prime Minister Stephen Harper announced yesterday that Ontario judges Andromache Karakatsanis and Michael Moldaver would be the next two justices to join the Supreme Court. So, just who are these two jurists, and what can we expect of them on the top bench? Tamsin McMahaon of the National Post provides us with a handy breakdown of Karakatsanis' legal and personal background, with one source telling her that the daughter of Greek immigrants is a bit of an "unknown quantity." Karakatsanis spent most of her career as a civil servant for the Ontario government, having served as the head of the province's Liquor Licence Board and as the deputy attorney general under the Progressive Conservative government of Mike Harris (the AG at the time happened to be the current federal finance minister, Jim Flaherty). She only became a sitting judge with the Ontario Superior Court in 2002, and had been on the Ontario Court of Appeal since just last year. Her appointment helps maintain the Supreme Court's minimum of four female justices, and as McMahon notes, her heritage and "[fluency] in English, French and Greek adds some diversity to the court." Her tenure on the Appeal's bench might have been brief, although she has established herself as "pro-accused," if anything, most notably for throwing out a case against a teacher accused of harbouring child porn on a school laptop because the laptop was seized without a warrant.

On the other hand, we have Moldaver, an "outspoken", "bright" and "combative" judge who's gained notoriety for criticizing defence lawyers for holding up criminal trials with Charter challenge after Charter challenge, notes the Toronto Star's Tracy Tyler. Moldaver should "bring a strength in criminal law to a nine-member bench that many lawyers believe sorely needs it," says Tyler, an appointment made all the more essential given the Conservative government's law-and-order agenda and the numerous constitutional challenges it's bound to espouse. But that doesn't make him an outright Tory sympathizer or even a supporter of the government's slavish devotion to being tough on crime. Tyler observes that Moldaver sat on three panels of judges that ultimately overturned age-old convictions against Steven Truscott, Romeo Phillion, and Robert Baltovitch. If nothing else, we're holding out the hope that he'll at least make Supreme Court judgments more scintillating to read.

So, neither of Harper's two choices are overly controversial, keeping in line with his appointments of Thomas Cromwell and Marshall Rothstein. But that doesn't mean there isn't room for improvement in the public screening process, The Globe and Mail's editorialists argue. Parliament's standing committee on justice gets just 2 1/2 hours to question the nominees tomorrow, just two days after the appointments were announced. "Two days is not enough for the committee to read the nominees’ judgments and any speeches they may have given and prepare probing questions," say the editorialists. "The scrutiny is needed." And while Harper certainly deserves credit for introducing the public hearings in 2006, the committee needs more time, both to research the nominees and to question them, for the hearings to be anything more than show trials.

Further to that end, the dean of Osgoode Hall Law School, Lorne Sossin, writes in The Globe that the process of selecting Supreme Court replacements has suffered due to Harper's decision to limit the selection committee to just six MPs – three Tories, two NDP MPs, and a Liberal. Paul Martin had introduced a screening process in 2005 that "included an MP from each party, a retired judge and, from the region where the vacancy arises, a nominee of the provincial attorneys-general, a nominee of the law societies and two prominent Canadians who are neither lawyers nor judges." The goal was to get as much input from as many viewpoints as possible for a decision that ultimately comes down to the prime minister's fancy. "The line between a merit-based and a partisan process is a fragile one, and is not helped by privileging the lens of parliamentarians and removing the filter of non-partisan, public-interest expertise," writes Sossin. "This is one of those times when the success of the outcome does not remove concerns about the process." Well, Harper will have plenty of opportunities to rectify that – he'll get to appoint as many as three more judges to the bench before the next election in 2015.