The two new Supreme Court of Canada appointees faced some tough questions from an ad hoc parliamentary committee on Oct 19 as part of the judicial selection procedure.
Nominee Michael Moldaver was grilled by opposition MPs for his inability to speak French, while Andromache Karakatsanis faced questions about her lack of experience.
The non-binding process is meant to aid Prime Minister Stephen Harper, who is making his final selection to replace judges Ian Binnie and Louise Charron, who recently retired from the Court. There are nine judges on the Supreme Court.
The Conservative government has recently expressed frustration with the Court over its decision to allow Vancouver’s Insite drug injection site for addicts to remain open.
Despite having previously unanimously agreed to his inclusion on a candidate short list, opposition NDP MPs opposed Moldaver’s appointment because of his lack of proficiency in French.
Moldaver, however, repeatedly affirmed his commitment to improving his French as soon as possible, noting in the meantime he would rely on translation and assistance from law clerks.
NDP MP Françoise Boivin, citing her 1985 appearance before the Supreme Court, said no matter how good the translation, translators can’t make jokes funny. She said a lack of fluency would affect oral arguments, used mostly for clarification, made before the Court in French.
Karakatsanis, who is fluent in Greek as well as French, faced questions on her perceived lack of judicial experience.
While Moldaver, 63, was appointed to the Supreme Court of Ontario in 1990, Karakatsanis, 56, was deputy attorney general of Ontario and later the secretary of cabinet and chief of the executive council before she was named to the Ontario Superior Court of Justice in 2002 and to the Ontario Court of Appeal 18 months ago.
She previously served as chair and chief executive officer of the Liquor Licensing Board of Ontario and as secretary of the Ontario Native Affairs Secretariat.
Karakatsanis defended her appointment and said her public service background has given her a “better understanding of how government works, how laws are made, the care that goes into reaching the decisions [parliamentarians] make.”
Moldaver, who has a reputation for being a tough “law-and-order” judge said Canadian judges use rigorous analysis to ensure a balancing of rights.
“The beauty of Canada is we are not a country of extremes,” Moldaver said. “If the law and order side goes beyond what the courts feel are the proper bounds, then we have to send a message back to Parliament that they’ve gone too far.”
Green Party Leader, Elizabeth May, who attended the hearing but was not allowed to ask questions, says she is confident Moldaver and Karakatsanis are good selections.
“There’s a lot of concern politically that we’re going to have an ‘activist’ court – that’s the kind of thing that the Harper people worry about,” May says. “Frankly, Canada’s culture is so small-c conservative in terms of our judiciary, the idea of an activist court is really a pipe dream.
“The Canadian judicial tradition is loath to interfere with the decisions of democratically elected institutions. Our Charter rights are hugely important, and for a government action or an infringement of rights to constitute something sufficient for the Court to act, it has to be very large.”
Several MPS praised the gathering, noting that the ad hoc process increased the transparency of the judicial selection process.
Moldaver, who said he was moved that his name was put forward, noted that it will be hard to replace retiring Supreme Court justices Binnie and Charron. “Their shoes will be difficult, if not impossible, to fill,” he said.