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SCC nominations leave gap

|Written By Michael McKiernan

Ontario legal watchers are turning their attention to the province’s Court of Appeal after the federal government raided that body to fill both of its Supreme Court of Canada vacancies last week.

Filling the gap at the appeal court ‘becomes a really pressing job now,’ says Joseph Neuberger.

Justice Michael Moldaver was one of the longest-serving judges on the appeal court bench having been there since 1995, while Justice Andromache Karakatsanis spent 19 months there before making the step up to the country’s top court.

Joseph Neuberger, a criminal defence lawyer with Neuberger Rose LLP in Toronto, says the Supreme Court will benefit from “two very strong candidates.” He points to Karakatsanis’ expertise in administrative law and Moldaver’s background in criminal matters, an area left particularly exposed on the top court bench following the departure of Justice Louise Charron.

“Both are tough acts to follow for the Court of Appeal, and the government will have to think very hard about who’s going to replace them,” says Neuberger. “That becomes a really pressing job now.

The gaps will be significant, especially in trying to replace Justice Moldaver’s knowledge. He’s been there since 1995 and he’s a very engaging judge with a tremendous breadth of knowledge. And that’s on top of his experience as a criminal lawyer.”

Greg Lafointaine, another Toronto criminal lawyer, says he hopes the federal government will move quickly to fill the new vacancies. The transfer of Karakatsanis will leave the appeal court with 22 judges, including Chief Justice Warren Winkler and Associate Chief Justice Dennis O’Connor.

“It’s a very busy court, so we’re looking for some appointments pretty quickly,” says Lafontaine. “It’s a hard-working court and to lose two very active judges leaves a large void.”

James Morton, former president of the Ontario Bar Association, says the appointments to that court will have a much greater impact for most in the province. While the Ontario Court of Appeal hears more than 1,000 appeals and 1,000 motions each year, the Supreme Court heard just 65 appeals in 2010. Less than three per cent of appeals to Ontario’s appeal court end up getting a hearing at the Supreme Court of Canada.

“The Supreme Court of Canada is very important, but for most of us on a day-to-day level, the court that really matters is the Court of Appeal,” says Morton. “If there is a political agenda in the government, we’ll see it by looking at the appointments to the Court of Appeal level because that’s where the vast majority of work is done.”

Morton, who ran for the Liberals in the last federal election, predicts a rightward shift at the top court as the Conservative government makes its way through its majority mandate. Moldaver and Karakatsanis were Prime Minister Stephen Harper’s third and fourth nominations, and he’s in position to name at least three more judges before the next scheduled election in 2015.

“Well, they’re certainly not leftward,” says Morton. “We’re looking at two appointments who are stronger on the law-and-order side and more deferential administratively to Parliament in general. I don’t think it’s an extreme thing but I think it’s incremental and I think we’ll see that in the appointments to the Court of Appeal, too.”

Harper will likely get plenty of opportunities to reshape the provincial Court of Appeal before the next election. Two judges,

Winkler and Justice Robert Armstrong, will reach the mandatory retirement age of 75 in 2013. Nine more judges are currently eligible for supernumerary status, while a further six will become eligible before 2015.

Moldaver, 63, was appointed to the Supreme Court of Ontario in 1990 after a career on the criminal defence bar.

“When he was younger, in the earlier years, there was a sense he could develop into a real friend of the defence bar, but that’s not the way things turned out,” says Lafontaine.

In recent years, Moldaver has clashed with criminal lawyers, accusing some of them of contributing to delays in the system by mounting baseless challenges under the Charter of Rights and Freedoms.

While nervousness about his appointment may be understandable among defence lawyers, Lafontaine says they may be exaggerated, particularly in light of Moldaver’s central role in the wrongful conviction cases of Steven Truscott and Romeo Phillion.

“There is a concern that he has unfairly targeted defence lawyers as the culprits for problems he perceives in the justice system, but my own view of Justice Moldaver the judge, as opposed to the speechmaker, is that he tends to be the consummate moderate,” says Lafontaine. “He certainly isn’t someone who is extremely conservative.”

Karakatsanis, 55, became a Superior Court judge in 2002 after a career largely in public service. During Mike Harris’ tenure as premier, she was deputy attorney general and was later promoted to secretary of the Ontario cabinet and clerk of the executive council.

“There weren’t high expectations when she was appointed,” says Morton. “Initially, people thought here’s someone who’s been a government-side person forever without much courtroom or business experience, but in fact she’s been seen as one of the stronger judges at the trial level and a very solid judge at the Court of Appeal.”

After it eschewed lawyers in private practice in its choices at the Supreme Court level, Morton says the federal government may change tack for its appeal court replacements.

“It’s not the normal route to appoint direct from the bar, but I’ve heard noises that they might want to do that and it’s certainly not unheard of.”

Neuberger is less convinced. He believes the government would rather pick a judge with a track record.

“When you’re appointing a lawyer directly, you may not have a good knowledge of where their ideology lies because they have not written decisions,” he says. “I would guess they’ll probably appoint someone who’s been on the Superior Court for a while and has some record with respect to writing on Charter applications.”

For related content, see "One unilingual judge on SCC bench enough."

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