11/01/2011 09:26 EDT | Updated 01/01/2012 05:12 EST

Is the Supreme Court Headed Right?

A concern regarding the appointments of Justices Andromache Karakatsanis and Michael Moldaver to the Supreme Court is that they may skew the Court's ideological balance to the right. As a bleeding-heart small "l" liberal, writing this over a soy latte and quinoa salad packed for lunch, you'd think I would be more worried.


Prime Minister Stephen Harper recently announced the appointment of Justices Andromache Karakatsanis and Michael Moldaver to the Supreme Court of Canada. The appointments will restore the high court to its full complement of nine judges, after outgoing Justices Ian Binnie and Louise Charron announced their retirement last May.

Justices Karakatsanis and Moldaver are more than qualified to serve on the Supreme Court. But neither justice is the perfect candidate. Media reaction to the prime minister's announcement has been mixed, with the main concern being that the appointments may skew the Court's ideological balance further to the right, leading to more restrictive interpretations of the Charter of Rights and Freedoms.

As a self-identified bleeding-heart small "l" liberal, writing this over a calorie-wise soy latte and quinoa salad packed for lunch, you'd think I would be more worried.

Justices Karakatsanis and Moldaver, while they might not have been my choices, are hardly far-right ideological extremists. They carry no official party affiliation, nor will they decide cases with any discernable political bias. That is not to say their decisions will be unpredictable. Indeed, reviewing their backgrounds and careers on the bench we may already observe certain trends. But overall, I do not think the appointees will be easily classifiable. Canadian styles of judging simply do not allow for it.

What a Difference the Border Makes

In the United States, pundits and politicos track the retirement prospects of justices like championship prize fighters, clinging on hopes that the right judge will bow out at the right time, making room for their own candidate who may potentially steer the court in a different direction.

One retirement from the U.S. Supreme Court's more progressive wing during a Romney administration may mean overturning Roe v. Wade and the end of legalized abortion in America. One retirement from its conservative wing during the Obama administration may mean repealing Proposition 8, and, let us pray, perhaps recognition of full marriage equality in the United States.

The main reason for this ideological divide is that there exist two competing theories of constitutional interpretation in America.

Liberal judges believe the U.S. Constitution is a living, breathing document, which considers the content of our freedoms to evolve with changing times. For example, as society identifies new and different forms of discrimination analogous to those already protected, they believe that the scope of equality guarantees should broaden.

Conservative judges, by contrast, subscribe to the 'Originalist' school. This considers the scope of rights and freedoms to be interpreted by the meaning of the documents when they were originally drafted. So essentially, if James Madison thought it necessary to protect an individual's right to bear arms in 1791, then Rick Perry should be allowed to jog with a sidearm in 2011 -- Revolutionary War or not.

Fortunately for our joggers, Canadian constitutional law raises different questions. Only by understanding the difference may we appreciate what is at stake in the appointments process.

Under the Living Tree

The Supreme Court of Canada has long characterized our Charter as a living tree. Concepts of equality, expression, and fundamental justice are not fixed, as if lost to time, but always in a process of becoming. This has been comparably less controversial in our country and I believe is undoubtedly the correct approach. The originalist view ignores the inevitabilities of postmodern society, in which the opening of borders, blurring of professional and personal, public and private, and evolving standards of reasonableness require that the judiciary be responsive to social change.

So the ideological divide in Canada is much narrower than in the United States. Differences in opinion are usually matters of degree, about when and where the living tree should grow and less about general principles. Justices on our high court are harder to classify, blocs are less consistent, and there is no recurring swing vote determining 5-4 decisions.

That is not to say we cannot find trends in Supreme Court of Canada voting, but these do not translate into reliable voting patterns. Retiring Justice Ian Binnie was a leader with broad expertise, known for eloquent if idiosyncratic judgments that were difficult to predict. Justice Louise Charron cut a more private figure, whose experience in criminal and evidence law guided the Court in those areas. Even if Binnie were considered more liberal and Charron more conservative, these leanings cannot be said to have defined their tenure. Our Supreme Court gallery does not hang caricature.

Our Worst Quinoa Nightmares

This brings us back to the prime minister's recent judicial appointments. Many have expressed concern that Justices Karakatsanis and Moldaver are small "c" conservatives.

They point to Justice Karakatsanis' involvement with the Mike Harris government and personal ties to Jim Flaherty as possible evidence of doctrinaire right-wing views, yet unrevealed by a limited profile on the bench. Karakatsanis served under two years on the Ontario Court of Appeal. Her relative inexperience suggests to some that the selection was partisan rather than merit-based, or that it was influenced by Harper's courting of the ethnic vote.

Justice Moldaver is a better known commodity, having served on the Ontario appellate court for 16 years. But some worry about his tough-on-crime reputation at a time that Ottawa has pushed an ill-conceived tough-on-crime agenda. He has publicly alleged that defence delaying tactics bring the Charter into disrepute. And Moldaver lacks proficiency in French. Some ask whether another unilingual appointment leaves the high court less accessible or less representative of Canadians.

Why You Shouldn't Worry

Justices Karakatsanis and Moldaver are not perfect candidates. Nobody is. But they are undoubtedly bold, brave choices with impressive credentials.

What Justice Karakatsanis lacks in appellate judicial experience she gains in practical understanding of how government operates, having worn many hats in different provincial administrations. Speaking before a parliamentary committee, she emphasized how this perspective will lend her unique insights on the bench, as will her diverse background. Karakatanis maintains the Supreme Court's current complement of four women judges, represents its first Greek-Canadian judge, and speaks three languages fluently, including English and French.

And even if Justice Moldaver's views on the defence bar have stirred controversy, he is not without credibility. Moldaver is a brilliant jurist with a criminal law focus, lending the Court much needed expertise in the area after Justice Charron's departure. Moldaver has even pledged to do "everything in my power to become proficient" in French. But then again so did Harper's last unilingual appointee, Justice Marshall Rothstein, who still doesn't speak fluently. At least the Court offers simultaneous translations.

All this to say that the prime minister's dissenters shouldn't worry. Well-established convention prevents any Supreme Court justice from taking an axe to our living tree, including the small "c" conservatives. In our wildest, bleeding-heart, soy latte nightmares they may only prune it. And our new Justices themselves, with the richness of their experiences, should be expected to serve with dignity in office and respect for all Canadians.

Our Supreme Court forecast may not be that bleak after all.