Supreme Court of Canada Nominees Appear Before Ad Hoc Committee of Parliamentarians
Ad Hoc Committee on the Appointment of Supreme Court of Canada Justices
Wednesday, October 19, 2011
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[English]
The Acting Chair (Hon. Rob Nicholson (Niagara Falls, CPC)):
Good afternoon, ladies and gentlemen. I would ask the media to please withdraw.
Ladies and gentlemen, I would like to welcome all of you, colleagues, committee members, Madam Justice Karakatsanis, Mr. Justice Moldaver, Professor Hogg, ladies and gentlemen, to this important and I believe historic event.
[Translation]
At this time, members will on behalf of all Canadians undertake a dialogue with two nominees to the Supreme Court of Canada, in accordance with a process the Prime Minister set out in his announcement of October 17, 2011.
[English]
At that time the Prime Minister announced that the two nominees would appear at a public hearing of an ad hoc committee of parliamentarians to answer questions of members of Parliament.
[Translation]
This procedure was followed once before when Justice Marshall Rothstein was appointed to the Supreme Court of Canada in 2006.
[English]
This public hearing is intended to bring greater openness and transparency to the appointments process by allowing Canadians to learn more about those individuals who will be appointed to the Supreme Court of Canada.
The selection process began after Mr. Justice Ian Binnie and Madam Justice Louise Charron announced on May 13, 2011, that they would be retiring from the Supreme Court.
In keeping with the announced process, I consulted with the Attorney General of Ontario, senior members of the Canadian judiciary, as well as with prominent legal organizations, including the Law Society of Upper Canada. The purpose of this consultation was to identify a pool of qualified candidates for appointment to the Supreme Court of Canada.
Members of the public were also invited to submit their input with respect to qualified candidates who would merit consideration.
A list of qualified candidates was then reviewed by an appointments selection panel composed of five members of Parliament from the government and recognized opposition caucuses as selected by their respective leaders. The members were Mr. Bob Dechert, Ms. Candice Hoeppner, Mr. Brent Rathgeber of the Conservative Party, Mr. Joe Comartin of the New Democrats, and the Hon. Irwin Cotler of the Liberal Party.
The panel was tasked with assessing the candidates and providing an unranked list of six qualified candidates for the Prime Minister and I, for our consideration. To help ensure a full, balanced, and objective assessment of the candidates, the members of the panel met to review the resumés provided by each candidate, as well as a number of reported judgments in publications.
The members of the panel also consulted with the Chief Justice of Canada, the Chief Justice of Ontario, the Attorney General of Ontario, the Law Society of Upper Canada, and the Canadian Bar Association.
The list of six candidates, which included the two nominees, was unanimously approved by the panel.
[Translation]
Before introducing the nominees, I would like to discuss a few matters regarding the procedure that will govern today's hearing.
[English]
First, as was the case with Mr. Justice Rothstein's hearing, we will begin with an opening statement from Professor Peter Hogg, who kindly agreed to join us today to speak to us on the constitutional framework that informs our deliberations today and on the Canadian traditions governing the proper limits of judicial speech.
This will be followed by opening remarks from each of the nominees. There will then be two rounds of questioning by committee members of up to eight minutes and five minutes, respectively. As chair, I will be responsible for enforcing these time limits. This proceeding will end with concluding remarks by Professor Hogg and me.
Second, I would like to inform our members and guests that parliamentary privilege does not apply to these proceedings as this is not technically a parliamentary committee. This means that the protection from defamation does not apply as it normally would in parliamentary proceedings. I have complete confidence you will use your good judgment accordingly.
Finally, I would like to remind you that these two eminent members of the Canadian judiciary will be responding to our questions in a manner that reflects the independence and impartiality of our justice system. This mean that some questions may not be answered fully or at all. Professor Hogg will explain the appropriate scope of questions and the constraints on judicial speech for us shortly. I would ask that we as committee members respect the parameters within which our nominees are able to respond.
I have the great honour and privilege today of introducing two outstanding jurists as the government's nominees to the Supreme Court of Canada. They are Madam Justice Karakatsanis and Mr. Justice Moldaver, both of the Ontario Court of Appeal.
I will begin with the introduction of Madam Justice Karakatsanis. She received her Bachelor of Arts in English literature from the University of Toronto in 1977. She attended Osgoode Hall Law School and was called to the bar of Ontario in 1982. From 1983 to 1987, she practised primarily in the areas of criminal and civil litigation as a partner in the law firm of Sotos, Karvanis, Karakatsanis. In 1987 she left private practice to become vice-chair and later chair and chief executive officer of the Liquor Licence Board of Ontario, where she served until 1995. That same year she joined the Ontario Ministry of the Attorney General and assumed a variety of posts, ultimately that of Deputy Attorney General from 1997 to 2000. Madam Justice Karakatsanis went on to serve as Secretary of the Cabinet and Clerk of the Executive Council until November 2002, when she was appointed to the Ontario Superior Court of Justice. In March 2010 she was elevated to the Court of Appeal. She has extensive experience in administrative law and spent a number of years actively involved in administrative justice, education, and reform issues. Prior to her appointment, she also volunteered extensively with the greater Toronto YMCA, where she served as chair of the board of directors.
Mr. Justice Moldaver received his Bachelor of Arts from the University of Toronto in 1968 and graduated from the University of Toronto Law School in 1971 as the gold medallist. Mr. Justice Moldaver was called to the bar of Ontario in 1973 and was appointed a Queen's counsel in 1985. Prior to his appointment to the Supreme Court of Ontario in April 1990, he specialized in criminal law. He also served as co-chair of the Canadian Bar Association-Ontario advocacy symposium committee, was a director of the Advocates' Society, and was a member of the board of directors of the Advocates' Society Institute. In addition, he was a council member of the University of Toronto Alumni Association and served as cochair of the University of Toronto academic tribunal. While in private practice and on the bench, Mr. Justice Moldaver lectured extensively on criminal law issues, sharing his expertise with new judges and continuing to lecture in a variety of continuing education venues. He was elevated to the Ontario Court of Appeal in December 2005.
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I will now introduce Professor Emeritus Peter Hogg. Professor Hogg is the leading constitutional law scholar in Canada. He was educated at the University of New Zealand and Harvard Law School. He received his call to the bar of New Zealand in 1962 and taught in New Zealand and Australia before coming to Canada in 1970 to teach at Osgoode Hall Law School in Toronto.
Professor Hogg was called to the Ontario bar in 1973 and received his Queen's counsel designation in 1980. He was also Dean of Osgoode Hall from 1998 to 2003. He is presently the scholar in residence at Blake, Cassels & Graydon. He is the recipient of many honours and awards, including the Law Society Medal and the Companion of the Order of Canada.
[Translation]
I would now ask Professor Hogg to give us an overview of the constitutional backdrop to this hearing.
[English]
Thank you, Professor Hogg. I turn the floor over to you.
Prof. Peter Hogg (Professor emeritus, Osgoode Hall Law School, York University, As an Individual): Thank you, Minister.
Good afternoon, ladies and gentlemen.
As the minister has explained, I am a constitutional lawyer. It's my role to make some opening remarks to the committee and to provide some guidance for your proceedings.
I might say that I'm speaking also to the general public, because I'm well aware that the people sitting around the table know very well what they are doing, but I think we should say some things that will be helpful for everybody who is listening.
This is the second occasion on which a government nominee for appointment to the Supreme Court of Canada has been interviewed in public by a committee composed of members of Parliament. The first time occurred in 2006 when an ad hoc parliamentary committee considered the nomination of Mr. Justice Rothstein. Some of you were on that committee.
The purpose today, of course, as the minister has said, is to consider the nomination of two candidates, Madam Justice Karakatsanis and Mr. Justice Moldaver, both of whom are now judges of the Ontario Court of Appeal.
This process, which of course we are only doing for the second time, has not been without controversy. There are people, many of them in the legal profession, who fear that a parliamentary review of judicial appointments carries more risk than benefit. The critics argue that an open process will tend to politicize the judiciary and publicly embarrass the distinguished people who are nominated for appointment.
I have no doubt that there are still some people who feel that way, but the proceedings of the committee in 2006 should have greatly reassured the critics. Although the questioning of Mr. Justice Rothstein covered a very large swath of ground, the Canadian virtues of civility and moderation were always on display. The hearing reflected great credit on the members of the committee, whose perceptive and courteous questions demonstrated that a parliamentary committee could make a valuable contribution to the appointment process.
I have always been a believer in this process, and I have no doubt whatever that we are going to have a very good hearing today.
Let me say something about the role of the committee.
The actual authority to make appointments to the Supreme Court of Canada is possessed by the Governor in Council. That is prescribed by the Supreme Court Act. So these appointments will have to be made by the Governor in Council. The Governor in Council will act on the advice of the Prime Minister.
This committee is charged with providing advice to the Prime Minister. He has undertaken to take into account the deliberations and views of the committee in deciding whether or not to proceed with the appointment of Justices Karakatsanis and Moldaver. The committee has the task of interviewing the two candidates to determine whether they are well qualified to serve on the court.
Obviously, the questions put to the candidates should proceed from an understanding of the role that is played by a judge of the Supreme Court of Canada, and I want to say something about that role.
Judges decide cases by finding the facts that are relevant and applying the law to those facts. But in the appeals that reach the Supreme Court of Canada there is a complication, in that the law itself is usually unclear. That is usually why the case went up to the Supreme Court of Canada. In that case, the judges are in a sense making new law, because they have to decide what the law is as well as how it applies to the facts of the case.
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Before each appeal is heard, the judges are required to read and digest an enormous amount of material. They read the decisions of the lower courts, the ones that are under appeal; they read at least some of the transcript of the evidence at trial; they read the decided cases that are arguably precedents for that particular appeal; they read the articles by law professors that bear on the issue; and they read the factums—those are the briefs of argument that are filed by counsel for the parties on both sides of the case and by persons who have intervened in the proceedings.
Then, when the appeal is heard, the judges listen to oral arguments of all parties and intervenors, and they test those arguments by asking questions. After the hearing, the judges discuss the case among themselves and deliberate on their decision.
The Supreme Court decides about 75 appeals each year. Every one of them involves the reading, research, listening, and deliberation that I've just described, and of course the court has to reach a decision on each appeal and then write an opinion.
The court of nine judges is usually unanimous, but in a minority of cases the court is divided, and one or more dissenting opinions have to be written. It is a very heavy workload that we require of our Supreme Court judges.
Let me say something about questions today. As the minister said, the protocol that was followed in the hearing in 2006 will be followed again today, and that means that committee members are free to ask any questions at all. However, when you think about the role the candidates will be called upon to play—and here I am just repeating the minister—if they are appointed, it becomes obvious that there are some questions they cannot be expected to answer. The most obvious category is that a judge cannot express views on cases or issues that could come before the court. Any public statements about issues of that kind might leave the false impression that the judge had a settled view on how to decide these cases without knowing what the facts were, without reviewing all the legal materials, and without listening to and weighing the arguments on both sides. That, I think, is the main category that the nominees will feel unable to answer questions about.
Of course, the committee is not precluded from, and will receive answers about, no doubt, general questions on how the nominees reach decisions—they are both experienced judges, of course—how they interact with colleagues, their professional lives and work, and any other matters that in your view bear on their ability to be a wise member of our highest court.
The main thing the committee can and should do is to satisfy itself that both these persons have the right stuff to be a judge of the Supreme Court of Canada. Do they have the professional and personal qualities that will enable them to serve with distinction as a judge on our highest court?
Without limiting the scope of your questions or your deliberations, let me suggest seven qualities of a Supreme Court judge that you might want to think about as you listen to their statements and ask them questions.
A judge has to be able to resolve difficult legal issues, not just by virtue of technical legal skills, but also with wisdom, fairness, and compassion.
A judge must have the energy and discipline to diligently study the materials that are filed in every appeal.
A judge must be able to maintain an open mind on every appeal until he or she has read all of the pertinent material and heard from counsel on both sides.
A judge must be independent, willing to decide a case according to his or her own view of what the law requires without regard to whether the decision is pleasing to the government of the day or to private interests.
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A judge must always treat the counsel and the litigants who appear before him or her with patience and courtesy.
A judge must be able to write opinions that are well written and well reasoned.
My last point is that a judge must be able to work cooperatively with eight colleagues to help produce agreement on unanimous or majority decisions and to do his or her share of the writing.
Ladies and gentlemen of the committee, if today you find two people with those qualities, the nation will thank you and the Prime Minister will have an easy choice ahead of him.
That concludes my remarks.
(1600)
The Acting Chair (Hon. Rob Nicholson): Thank you, Professor Hogg.
As agreed to, we'll hear from the nominees themselves.
Have you decided among you who will go first? You'll leave it up to the chair?
Mr. Justice Michael J. Moldaver (As an Individual): I'm going to reserve on that, Mr. Minister.
The Acting Chair (Hon. Rob Nicholson): I think I'll proceed according to seniority and ask you, Mr. Justice Moldaver, to begin.
Mr. Justice Michael J. Moldaver: Thank you very much, and thank you, Minister Nicholson, for your very kind introductory remarks.
I must tell you, though, sir, that I haven't felt like this since the time I made my very first jury address as a defence counsel. That was 38 years ago. My client should be getting out any time soon. I hope I can do a bit better today.
Mr. Minister, distinguished members of the committee, Professor Hogg, and Justice Karakatsanis, of whom I'm so proud, and ladies and gentlemen, as you might imagine, I am extremely honoured to be here, and I am deeply moved by the confidence the Prime Minister has shown in me by putting my name forward as a candidate for the Supreme Court of Canada.
One need only consider the two justices whom my colleague, Justice Karakatsanis, and I have been nominated to replace to realize what a humbling experience this is. Justices Binnie and Charron have served the court and the people of this country with distinction during their tenure on the court. Each has made an enormous contribution to the jurisprudence of this country in all areas of the law. Justices Binnie and Charron are recognized both nationally and internationally for their legal scholarship, their dedication to the rule of law, and the clear and well-reasoned judgments they have consistently written. Their shoes will be hard, if not impossible, to fill. I can only say that if Justice Karakatsanis and I are ultimately approved to fill their positions, we will do our utmost to carry on the tradition of excellence that they leave behind as their legacy.
As I sit here, I cannot help but think that if someone had told me when I was a high school student in Peterborough, which is where I'm from, that some day I would be appearing before an ad hoc committee charged with reviewing my nomination as a candidate for the Supreme Court of Canada, I would have asked them what they had been smoking. Actually, in those days, smoking wasn't in vogue yet, so I probably would have asked them what they'd been drinking.
The message from this is twofold. First, I consider myself extremely fortunate to be here. Second, it confirms my belief that Canada is the greatest country in the world, a country where today's dream can become tomorrow's reality. I'm very proud to be a Canadian citizen and I'm proud to call Canada my home. And indeed it is. As I mentioned, I was born and raised in Peterborough, Ontario. My parents, Irving and Ruth Moldaver, are now deceased, but I feel their presence here with me today. My oldest brother, Joel, continues to reside in Peterborough. Joel is a lawyer. He has practised real estate and commercial law for over 40 years with honour and distinction. I am very proud of him, as I am of my middle brother, Pesach, who lives in Toronto and teaches at the Beth Jacob school. Of special note, prior to becoming a teacher, Pesach obtained his doctorate in French literature in Strasbourg, France. Little does he know it, but if my nomination is approved, he will be spending a lot of time in Ottawa teaching his baby brother French, and that is something I should perhaps address right now.
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[Translation]
I apologize for my limited abilities in French. That said, I have the greatest respect for the French language, for the French Canadian culture, including the civil law, for Quebec men and women, as well as for all other French-speaking Canadians.
If my nomination is confirmed, I will do everything in my power in the years to come to improve my knowledge of French.
[English]
Returning to my days in Peterborough, if I may, I came from a modest household, but we were always comfortable and I never wanted for anything.
My father was in the scrap metal business. He was a very smart man, but he was forced to leave school at age 14 or 15 to help support his family. University educated or not, common sense and good judgment were his long suits. It was these qualities that enabled him to succeed in business and life in general.
My father loved life, and he had a natural affinity for people from all walks of life. The words that my brothers and I inscribed on his headstone pretty much convey what he was all about: "Live each day to the fullest, and respect the worth and dignity of every human being"
.
My mother was a homemaker. I do not say that lightly. Raising three boys was no walk in the park. In her spare time, which she somehow managed to find, she engaged heavily in community and charitable causes, including VON, Children's Aid, Home and School, and many, many others. She too was extremely smart, but like my father had to leave school at an early age.
My mother doted on her three boys. Much as I hate to admit it on national television, she spoiled each and every one of us. By any measure, to me, she was the most wonderful mother in the world. If she were still here, her joy today would be unbounded.
For Mom and Dad, a university education for all three children was a must. My brothers and I were going to get the university education that had eluded them. And so it was that all three of us ended up going to university. The deal was that my father and mother would pay for our room and board. We were expected to work in the summer to pay for our tuition and books.
In my case, I worked for a number of summers on the road gang, fixing and repaving the streets of Peterborough. The work I did was mostly pick-and-shovel, and it was hard work. On a hot summer day, with the asphalt coming off the truck at 700° or 800° Fahrenheit, I can assure you it was no picnic.
But it had its redeeming features. First, it was a character builder. If you could get through the summer, you could pretty much get through anything.
Second, it exposed me to co-workers from various walks of life, some of whom did not take kindly to university students. To them, we were elitist interlopers. We had to learn to cope and we had to learn to get along. As I've told innumerable law students whom I've had the privilege of teaching over the years, I learned more about talking to juries from my summers on the road gang than I did in all the years I spent in law school.
The third bonus from working on the road gang was that it enabled me to included in my CV that I was a "Roads Scholar".
Voices: Oh, oh!
Mr. Justice Michael J. Moldaver: That paved my way into many gatherings where I met a lot of people far smarter than me. On occasion, someone would approach me and say, "You know you spelled 'Rhodes' wrong", to which I would reply, "No, that's the way we spell it in Peterborough."
Voices: Oh, oh!
Mr. Justice Michael J. Moldaver: A final note on my family and then I'll move on.
I have two wonderful daughters. Shannon is a lawyer with the Law Society of Upper Canada. She is married to Daniel Dorenbush, and she and Daniel have two beautiful sons, Ethan and Jaxson.
My younger daughter, Jessica, is completing her fourth-year undergraduate program at Dalhousie University in Halifax. She too has expressed an interest in law, but she finds the prospect of the LSAT to be quite daunting. I don't blame her. I think I would have ended up in my father's scrap metal business if I had had to write it.
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Needless to say, I'm very proud of both my children.
As for my education, I graduated from the University of Toronto with a general arts degree in 1968. I had a modest B average, but that was sufficient in those days to get me into the University of Toronto Law School. Today, I doubt there is a law school in the country that would even look at me with those marks.
My law school beginnings were anything but propitious. We had to write a set of exams at Christmas. Fortunately, they didn't count at the end of the year. My marks were less than stellar. Happily, my ending at law school some three years later turned out to be a little bit better.
After law school, I had the great good fortune of spending the last six months of my articling year with Mr. G. Arthur Martin, hands down the greatest criminal lawyer this country has ever produced. That was 1972. As some of you may know, a year or so later Mr. Martin was appointed to the Ontario Court of Appeal, where he served with great distinction and honour. During his tenure on the court, he was revered—revered—by all who had the privilege of appearing before him. I know. I was one of his regulars.
Prior to articling with Mr. Martin, I had planned to return to Peterborough and practise with my brother, Joel, which would have been just fine, but Mr. Martin's influence was too great and I decided to remain in Toronto and practise criminal law, which is precisely what I did for the next 17 years of my life. During those years, I had the great good fortune of partnering with four of the best criminal lawyers in the province, if not the country: Eddie Greenspan, Brian Greenspan, Alan Gold, and Marc Rosenberg, now Mr. Justice Rosenberg, my colleague on the Ontario Court of Appeal.
Over the course of my 17 years as a defence counsel, I came to appreciate the value of a strong, vibrant, independent defence bar and the essential role it played in preserving and protecting the rights of persons charged with criminal offences. In a speech to the criminal lawyers in the late eighties, I described the role of the criminal defence counsel as "vital to the maintenance and preservation of a free and democratic society". That was my view then and that is my view now.
My life as a defence counsel came to an end in April 1990, when I was appointed to the High Court of Justice as a trial judge. Needless to say, I was very happy, in part because I believed my new job would be something akin to semi-retirement. Boy, did I get a wrong number.
From the day I was sworn in until the day I was appointed to the Court of Appeal, some five and a half years later, I never worked harder in my life. My work consisted mostly of murder trials or sitting in the divisional court with two other judges hearing judicial review applications from administrative tribunals. During my five and a half years on the trial court, I quickly came to realize that trial judges are the unsung heroes of our justice system. They are its backbone. They are the men and women in the front lines. Appellate judges have the luxury of sitting back and watching the battlefield from on high. Trial judges, on the other hand, are in the trenches every day engaging in one battle after another on a constant and persistent basis.
I think we owe our trial judges a great debt of gratitude. Appellate judges in particular can express their gratitude by setting out the law, where possible, in clear and succinct terms and by giving trial judges the guidance they need to complete a trial from start to finish without falling into reversible error.
My term as a trial judge came to an end in December 1995, when I was appointed to the Ontario Court of Appeal. As an appellate judge, it was no longer my responsibility to determine the facts, nor was it my function to instruct juries on the law. My task, in conjunction with two colleagues, was to review the trial record to determine whether any serious errors of law had been made and, more generally, whether the losing party had received a fair trial.
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That, in essence, honourable members, is what I've been doing with my life for the past 15 years. The good part is I've been doing it with the finest colleagues I could ever have imagined.
At present, commencing with Chief Justice Warren Winkler and Associate Chief Justice Dennis O'Connor, and going all the way down the line, I can say without hesitation that I have never worked with a more collegial, more generous, or more warm-spirited group of people, nor have I ever worked with a more intelligent group of people. I hold all of my colleagues in high esteem. Any one of them could be sitting where I am right now.
In my years on the court, the court as a whole has worked tirelessly to bring the highest quality of justice to the province of Ontario. Personally, in carrying out my responsibilities, I have been privileged to sit on a number of cases that have been of interest not only to the people of Ontario but to the country as a whole—the Steven Truscott reference, the Romeo Phillion reference, and the recent grouping of cases involving terrorism are but a few that come to mind. In sum, my experience on the Ontario Court of Appeal has been a positive one from beginning to end, and I am deeply grateful to my colleagues and the exceptional Court of Appeal staff at Osgoode Hall for making it so.
In the time I have remaining, Mr. Chairman, I want to make a few brief comments about our justice system and the role that judges are called upon to perform in a constitutional democracy. Let me begin by saying that in my view Canada has one of the finest justice systems in the whole world. In many respects it serves as a model for constitutional democracies throughout the world, wherever they exist and wherever they may take root. In general, some of the hallmarks of our justice system include a justice system that is premised on the supremacy of the rule of law, a justice system that prides itself on an independent judiciary and open courtrooms, and a justice system that is founded on the belief that we are all equal before and under the law and that every human being is entitled to be treated with dignity and respect.
Particular to our criminal justice system I would add the following hallmarks: a justice system that is served by police officers of integrity who are sworn to uphold the law and who dedicate their lives, often at great personal risk, to ensure that ordinary Canadians like me are able to live out our lives in peace, harmony, and safety; a justice system that relies on firm but fair-minded crown attorneys to protect the interests of society; and finally, a justice system that relies on a strong, vibrant, independent defence bar to protect the interests of persons who are charged and to ensure that they are treated fairly and that they receive a fair trial. I think everyone would agree that it can't get much better than that.
The Charter of Rights and Freedoms is an integral part of our Constitution. It constitutes the supreme law of the land and it serves as a cornerstone of our justice system. In short, it speaks to what we are all about as Canadians and what we aspire to be. Since the advent of the charter in 1982, judges have been given the authority to strike down laws enacted by Parliament, provincial legislatures, and other government bodies, to the extent that the laws in question fail to conform to the provisions of the Charter. That power is an awesome one and it places a tremendous responsibility on judges to act responsibly. We are not above the law. On the contrary, like the executive and legislative branches of government, we, too, are bound by the law. Under the rule of law it is not our function to create laws, nor do we have the right to direct governments on matters of policy. Under the Constitution we have been given the authority to determine the legality of laws passed by Parliament and the legislatures. In fulfilling that role, we must never lose sight of the fact that we are being asked to strike down laws that have been enacted by a democratically elected majority of parliamentarians.
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The need for caution and restraint in these circumstances is selfevident, but the ramifications of our decisions must never prevent us from acting fearlessly in accordance with the mandate we have been given. That is our sworn duty, and we must abide by it.
Let me end this presentation where I began.
[Translation]
It is a very great honour for me to have been chosen to sit on the Supreme Court of Canada.
If my appointment is confirmed, I commit to serving the population of Canada with diligence and integrity, to the best of my ability.
[English]
Thank you. Merci beaucoup.
The Acting Chair (Hon. Rob Nicholson): Thank you very much, Your Honour.
Now, Madam Justice Karakatsanis, please.
Madam Justice Andromache Karakatsanis (As an Individual): Thank you, Mr. Minister.
[Translation]
I appreciated your generous introduction very much.
[English]
Minister, members of the committee, Professor Hogg, Justice Moldaver, ladies and gentlemen,
[Translation]
I am really delighted to have been nominated for the position of Justice of the Supreme Court of Canada.
[English]
I am at once honoured and humbled by the confidence the selection committee has shown in me by including me on its short list and the confidence the Prime Minister has shown in nominating me for the extraordinary privilege to serve the public as a judge of the Supreme Court of Canada.
I am particularly pleased to be here with my friend and colleague, Justice Moldaver. As he has said so eloquently, it's very humbling to be nominated to fill the vacancies of two outstanding jurists, Justice Louise Charron and Justice Ian Binnie.
I would not be entirely honest if I did not admit to some considerable nervousness about this hearing. However, while it may be somewhat nerve-racking for the nominee, this hearing provides some transparency to the process, and it is a real opportunity for elected officials and the Canadian public to meet the nominees for these important positions.
[Translation]
Of course, the process was adapted in order to respect the independence and the privacy of judges and to respect the constraints judges are subjected to in their public statements, especially on matters which may be debated in court. It is very important that a judge be impartial and that he or she have an open attitude. Today's public hearing thus gives me the opportunity to introduce myself to Canadians.
[English]
In my opening statement I would like to tell you a little about myself, my background, my family, and my somewhat unusual career as a lawyer in public service. I will conclude by making some observations about the role of the judiciary and the rule of law in our Canadian democracy.
I was born in Toronto to Greek immigrants. Like so many other Canadians, my parents saw Canada as a land of opportunity and they chose to make it their home. They left their homes in Greece after the Second World War to make a fresh start. They came without language or family or fortune but with determination and courage and with the dream of a better future for their children. They came as single young adults. They met here and married and they built a successful business. Yes, it was a restaurant business.
My parents always put their children first and encouraged us to reach for our dreams. They modelled responsibility, generosity, and an extremely strong work ethic. They have been an inspiration and an example. They are watching these proceedings today. They are very proud of me and I am very proud of them.
My husband, Tom Karvanis, has been my life partner for 35 years. We met at the University of Toronto, we went to Osgoode Hall Law School together, and for a few years we even practised law together. He has inspired me, he has encouraged me, and he has supported me through every step of my career.
My children, Paul Karvanis and Rhea Karvanis, have both chosen to start their careers with the law. Paul is an associate with the law firm of Stikeman Elliott in Toronto and Rhea is in her final year at the U of T law school. My kids keep me grounded. They regularly remind me that there is no Madam Justice at home. On the fact that my children chose to pursue careers with the law, I call it a compliment to their parents. My husband says it's genetic, but my kids say it's conditioning. I am very proud of my children. My family is thrilled with my nomination, and they are glued to their television sets this afternoon.
Canadian immigrants so often seem able to bring the very best of their cultures with them to Canada. My own parents raised me to love both their adopted country and the best of Greek culture. In the best of Greek traditions, I have a large extended family, and it's thanks to them that I am adept at cooking for 35 people. My Greek heritage is very much a part of who I am and what I have been able to accomplish. I have always felt grateful to be able to draw on the strengths of different cultures, and my immigrant heritage has also been important to me in my professional life. I believe it has made me more sensitive to the challenges that immigrants face and more receptive to different cultures.
There were no doubt some challenges growing up. I did not speak any English when I first went to kindergarten. I was always aware of certain differences. My parents were stricter than most. And of course there's my name, Andromache Karakatsanis. I still hear very interesting pronunciations, and I have to spell it out regularly, although today it has been pronounced perfectly.
Canada is a country that turns differences into strengths.
Having a second language made it easier to learn a third.
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[Translation]
The French language has enriched my life personally and professionally. As a judge, I have taken advantage of language training programs offered by the Office of the Commissioner for Federal Judicial Affairs.
I feel very lucky not only to have had the opportunity to learn French, but also to have been able to get to know and experience Quebec culture. Each year, over the past eight years, I have spent at least two weeks in the province of Quebec to take immersion courses in Molière's tongue, and sometimes in the language spoken on the street.
It has now been three years since I passed the oral competency exam and I was given a C grade. That is the level required by the federal government for positions that are designated bilingual in the public service. And at the Appeals Court, I had the opportunity of hearing one or two appeals in French.
Last September, I spent two weeks in Quebec taking a follow-up course. I am not perfectly bilingual, but I am going to continue to learn and to improve my French. I'm very happy to be able to read documents in French, to understand oral arguments and to discuss certain issues with my colleagues.
I am always very happy to discuss things with my francophone colleagues in French.
(1630)
[English]
You won't be surprised to hear that my first job was in the family restaurant during the school years. It's a great teaching ground for learning to work hard and to work cooperatively. I learned how to be polite and civil even when customers were not at their very best. I often advise young people to get experience working in the service industry.
For me, too, university was never a choice, and it wasn't a choice for my sister Catherine or my brother Anthony either. It was a given. My parents just expected us all to become professionals, although I think they left the choice up to us. I could not have chosen better. A career in the law can open up so many interesting and unusual doors in both private and public life. It provides a real opportunity to make a difference. For me, it's been a wonderful and perhaps unconventional journey for the most part in public service.
For a few years I practised law as a partner in a small law firm— litigation, mainly criminal. I then became vice-chair and then chair and CEO of the Liquor Licence Board of Ontario, serving as a tribunal chair, an adjudicator in the administrative justice system. Subsequently, when I became secretary of the Ontario Native Affairs Secretariat, I was responsible for the land claim negotiations and aboriginal policy development.
As the Deputy Attorney General of Ontario in the late 1990s, I oversaw court administration and justice services and was responsible for the more than 1,000 lawyers who provided legal advice and support for the Government of Ontario. Finally, I was appointed Secretary of Cabinet and Clerk of the Executive Council. As the most senior public servant in Ontario, I was responsible for the oversight, the integrity, of the cabinet decision-making process and for providing professional public administration.
My experience as a senior public servant has given me a broad understanding of how government works and a broad perspective on social and legal issues.
I take great pride in my career as a non-partisan professional public servant. I was first appointed by Premier Peterson as chair and CEO of the Liquor Licence Board. I was re-appointed by Premier Rae and I was appointed a deputy minister and then head of the public service by Premier Harris. I'm proud of having received premier appointments from the leaders of three different political parties.
During my 15 years with the Ontario public service, I served directly with 13 ministers and four premiers. I have enormous respect for the work of elected officials, and I believe deeply in our system of parliamentary democracy, with the three pillars of the legislature, the executive, and the judiciary.
Of course, I am most privileged to have had the opportunity to continue public service as a judge for almost nine years. It will be nine years next month. I was a trial judge for seven and a half years. The diversity of the people who appear in our court rooms, the range of human experiences, and the variety of factual and legal issues mean that a judge's work is often exhausting, but it's rarely boring. As a trial judge, I learned how important it is to listen, to keep an open mind, and not to rush to judgment. The cases often turned out quite differently than I might have anticipated.
I learned the need for humility and civility if you must stand in judgment of others. A judge must always be intellectually honest and is bound by the evidence in the law. Indeed, judges are subject to real constraints. They must conduct court proceedings in accordance with well-established rules and procedural fairness. They must follow precedent and apply the interpretation developed by the jurisprudence.
(1635)
[Translation]
I am always going to respect the work of the trial judge, which is so important and so stimulating. That said, I adore the work of appeal court judge. I have a passion for the law, I like to write and I like to work with others.
[English]
I have served on the Court of Appeal for the last year and a half. It has been an intense and rewarding experience. I have loved every minute of working with the incredibly smart, accomplished, and collegial judges of the Court of Appeal for Ontario. They welcomed me so warmly, and without exception they are extraordinary jurists. If my nomination proceeds, I will miss them all very much.
As Justice Moldaver has said, Parliament has given judges the awesome responsibility to ensure that government acts in accordance with the Canadian Charter of Rights and Freedoms. But we do so with respect, recognizing that it is the responsibility of elected officials to make the difficult public policy decisions and to make the difficult decisions about how to spend public funds. Of course, if the law violates the Charter, it must be struck down. This is the role that Parliament has given to the judiciary.
[Translation]
Canada is a bilingual and bijuridical country. Consequently, it is a stronger country. Canada has two legal systems and two official languages.
Of course, I did not do my university studies in the civil law. However, it is important to me to understand the Civil Code as well as the approach and principles of civil law. If I become a justice of the Supreme Court of Canada, I am going to work with diligence to learn the Civil Code by reading as much as possible and discussing matters with my colleagues on the bench.
Indeed, to me, one of the joys of working as a judge is to be able to learn something every day of my life.
[English]
I have been privileged to view the justice system from several very different and broad perspectives. As I reflect back on three decades of a diverse legal career, one thing stands out: the rule of law is the cornerstone of our free and democratic society and our way of life as Canadians. The rule of law means that no one is above the law. The rule of law allows us to live together in freedom and in harmony. We often take it for granted, but I believe it is what makes Canada the envy of the world.
The rule of law is a reality because of our justice system, and at the heart of the justice system is the public's confidence in the independence and the integrity of the judiciary. Judges have a tremendous responsibility to apply the law impartially, with an open mind, and fearlessly in accordance with the law and precedent. We must embody and protect the fundamental values of our Canadian community in accordance with our Canadian Charter of Rights and Freedoms. We must bring independence of thought with humility of spirit, recognizing that the rule of law must be safeguarded for all.
As a passionate Canadian I would be proud to serve this country as a member of its highest court.
(1640)
[Translation]
I think Canada is the best country in the world. It is a country that allows us to celebrate our differences, and Canadian values as well. It is a country that embraces diversity.
[English]
Canada is a land of opportunity and of generosity. It's a land of astonishing beauty and diversity.
[Translation]
It is a strong and free country.
[English]
I am honoured to be here today. I would be thrilled to have the opportunity for such important and challenging work with the talented and dedicated judges on the Supreme Court of Canada.
[Translation]
It will be a privilege and a pleasure for me to work with the judges of the highest court in the land.
[English]
I solemnly promise that if appointed to the Supreme Court of Canada I will discharge this public trust to the very best of my abilities.
I'm ready to take questions.
Mr. Justice Michael J. Moldaver: Can we go now?
Voices: Oh, oh!
The Acting Chair (Hon. Rob Nicholson): Ah, we wish.
Thank you very much.
As agreed among the members of the committee, we're going to go through the speaking rotation now.
I would call upon my colleague, Candice Hoeppner, to begin the questioning.
Ms. Candice Hoeppner (Portage—Lisgar, CPC): Thank you very much, Minister, Mr. Chair.
I want to begin by saying how honoured I am to be able to welcome both Madam Justice Karakatsanis and Mr. Justice Moldaver here today. I want to tell you how honoured I am to meet you.
I was part of the five-member selection panel that provided the short list, and I've never had the opportunity to meet you before. Having spent some time looking at your qualifications, together with my very esteemed colleagues—we worked very well together, and it was a pleasure to work with each one. Together we looked at your qualifications and at different areas surrounding the work that you've done. Today it's a real honour and a privilege to meet you.
I want to assure you both that when we looked at your qualifications, when we looked at your character, and when we looked at your records of excellence, we all agreed unanimously that you would make excellent Supreme Court justices. Thank you so much for accepting the nominations and for being here, and for being willing to be part of this process.
What's so good, I believe, about the process today is that Canadians can watch and can listen to you. After hearing both of your presentations, I'm also very impressed and proud of your humanity and the genuine humility you are bringing to this, and the value for family and, from the experiences you've had, the value for hard work.
There are many Canadians watching today who probably have never had a need to even meet a lawyer, unless they may have done a real estate transaction, and probably never a judge, and probably not someone who has been nominated for the Supreme Court of Canada. So I'm posing my question today actually from a Canadian I met over the weekend. We had no idea that this session would be happening today. The question was posed in terms of accountability for judges in Canada. I think it was probably posed in the context of knowing that American judges are elected, and that for some Canadians that raises the question of accountability.
I'm wondering whether both of you could address this and maybe explain to our committee and to Canadians how our system works in terms of how you are accountable and to whom you are accountable. Also, if you would, please draw on your experience as judges, both trial judges and appeal court judges.
Thank you very much.
Madam Justice Andromache Karakatsanis: Actually, judges are accountable in a number of different ways. It starts first with our principle of an open court room. We do our work in the public; it's open to public scrutiny. Certainly as a trial judge I frequently had members of the public, often school children as well, in my courtroom. That is a very important principle that underlies the accountability of judges.
We have to give reasons for our decision. Those reasons have to be clear and must explain why we have reached a certain result. That's another form of accountability.
Those reasons are reviewed sometimes by the Court of Appeal. That's yet another level of accountability for judicial decisionmaking. On the personal front, being a judge means that you have to be very aware always that you hold a very important public position and that you must act with integrity in your personal as well as professional life. There is a process, and Canadians avail themselves of it, whereby people can lodge complaints with the Canadian Judicial Council, which will review any complaints about conduct. This is a process that is there to assure that we are able to carry out our profession in a way that maintains the public's confidence in the administration of justice.
I have to say that as a judge I feel there are so many different ways in which I have to be careful. I am always cautious about what I say and how I say it. I'm careful when I'm enjoying myself in public, in a restaurant, or at a party. I'm always conscious that it's not just me, but that I fill a position. It's an important public position, and the public must trust the people who have those positions.
So I think there's a fair bit of accountability.
(1645)
Mr. Justice Michael J. Moldaver: Let me add to that briefly, if I may.
I agree with everything my colleague has said, and she said it, as she always does, very eloquently.
I believe we are here to serve the people; the people are not here to serve us. I find it somewhat ironic that when people come into the courtroom, they nod their heads or bow to us. We should be bowing to the people. They are our constituency.
I think we have an obligation to the people to do our very best to write judgments that are intelligible and that the people can understand. We have a very great responsibility to those, for example, who are in law enforcement, who are, day in and day out, having to make difficult decisions in trying situations. But again, we try our best to make the law clear so that they can understand what it is they can and cannot do.
The laws have to be, as I say, understandable to the people who are involved with them. What I mean by that is this. People have a right to know what they can and cannot do. That, with respect, is your responsibility, but it's our responsibility as well. To that extent, this is probably the most important aspect of accountability that I would consider in terms of responding to your very important question. Thank you so much for it.
Madam Justice Andromache Karakatsanis: May I add one thing?
Ms. Candice Hoeppner: Yes, please.
Madam Justice Andromache Karakatsanis: Often, when people think of judges, they think of people who have authority and power. I have to tell you that, sitting in our chairs, it's just about our responsibility. That's what it feels like. We have this awesome responsibility.
The Acting Chair (Hon. Rob Nicholson): Thank you very much.
I'll go to the New Democratic Party. I look, of course, to the new House leader of the New Democratic Party, Mr. Joe Comartin.
Mr. Joe Comartin (Windsor—Tecumseh, NDP): He's just saying that in a pleasant way because he's happy to get rid of me as his justice critic.
The Acting Chair (Hon. Rob Nicholson): We won't get into that.
Mr. Joe Comartin: That's for another time.
Thank you, Mr. Chair.
I woke up, Mr. Justice Moldaver, at about 3:30 this morning considering how I was going to cross-examine you today. And it's not easy, but I'm sure you're aware that it's your appointment that has the controversy around it, because of your lack of capability in the French language. I just want to be clear on this. From your opening comments,
(1650)
[Translation]
I understand that you do not speak French at all.
[English]
I'll say it in English. I understand that you're not able to speak French at all.
[Translation]
Mr. Justice Michael J. Moldaver: A little.
[English]
Mr. Joe Comartin: The statements you read today, I assume, had been prepared, and you were reading those statements.
Mr. Justice Michael J. Moldaver: That's correct, sir.
Mr. Joe Comartin: Mr. Justice Moldaver, it's certainly interesting. We see the comparison here between the two candidates. Was there any advantage that Madam Justice Karakatsanis had in terms of learning French that was not available to you?
Mr. Justice Michael J. Moldaver: No, sir, there wasn't.
Mr. Joe Comartin: I just want to go back to the controversy. We've had editorials in some of the newspapers in Quebec. We've had the Barreau du Québec pressing the government to reconsider your nomination. We certainly have had the Commissioner of Official Languages...who has been very clear over a number of years now that it is an absolute requirement, that it's one of the qualities. We listened to Professor Hogg as to what the qualities are of a judge. According to the Commissioner of Official Languages, one of those qualities is the ability to be able to work in French and in English when you're sitting on the highest court of this country.
What do you say to people like this? And let me share this question with you. What do my colleagues from the province of Quebec—all of my colleagues from the province of Quebec—say to their constituents as to why a member...?
Mr. Moldaver, I want to be very clear here. I have followed your career for a long time. We have personal friends—not you and me, but we both have friends to each other. I have followed your career. I have no questions about your ability except for that one—for me crucial—element.
So what do we say? What do you say to the province of Quebec, to the francophonie communities across the country?
Mr. Justice Michael J. Moldaver: Thank you, Mr. Comartin. That's a very important question, and I take it very seriously, I assure you.
My lack of fluency in French at the present time will clearly make my task on the court that much harder. But I'm not even worried so much about me. I feel and I understand exactly the concern certainly from counsel who appear before the court and who wish to speak in French and who understandably would want a judge who can engage with them in the French language, which I readily admit at this time I cannot do.
That said, I can only commit to you that I will be studying and I'll be learning, and I'll obviously be meeting with someone to learn French as quickly as I can. There is simultaneous translation, which obviously will be of assistance to me. I will have law clerks available who can assist me in understanding factums and so on that are filed in French. I will obviously have colleagues who can assist me.
All I can say, sir, is that I'll do everything in my power to get as proficient as I can in the French language as quickly as possible.
I respect the question. I respect very much the views of the Québécois. I am what I am. I will do everything I can, as I said in my opening, to try to get as proficient as I can as quickly as possible. I can't do more than that, sir.
Mr. Joe Comartin: Mr. Justice Moldaver, I have to say this to you. I was the only one who sat through.... I'm sorry, Mr. Cotler may have sat through it as well. I'm one of the only two on this committee who sat through the appointment review of Mr. Justice Rothstein.
Maybe it's once burned, twice shy, but I heard the same commitment from him. We all know that was five or five and a half years ago, and Mr. Justice Rothstein is still not able to conduct any hearings in French. I just make that as a comment. I don't want your response.
Let me go on. For the sake of the public who are listening, when you were first approached by the justice department to let your name be placed forward, was there any discussion from the justice department of your lack of ability to speak French?
(1655)
Mr. Justice Michael J. Moldaver: I certainly made it clear right at the outset that I was not bilingual, so that was known, yes, sir.
Mr. Joe Comartin: Okay.
Do you know who else was on either the long list or the short list of the final six names that were presented to the Minister of Justice and the Prime Minister, obviously other than your companion sitting at the table with you?
Mr. Justice Michael J. Moldaver: I have heard rumours, but I tell you sincerely that we were kept completely in the dark.
Mr. Joe Comartin: Would you agree with me there are other members of the Ontario Court of Appeal with a similarly strong background in criminal law who are also bilingual?
Mr. Justice Michael J. Moldaver: No, I wouldn't agree with that, sir. If you're just talking background in criminal law, there are some other very highly qualified members of our court who are excellent in all areas of the law. I'm not going to try to mislead anybody. But if you're asking about the members of our court who have a criminal law background, the simple answer is no, none of us is bilingual.
Mr. Joe Comartin: How many judges sit on the Court of Appeal for Ontario?
Mr. Justice Michael J. Moldaver: There are about 22, I think.
Mr. Joe Comartin: Of that panel, how many are able to conduct trials in French?
Mr. Justice Michael J. Moldaver: How many could do a trial in French?
Mr. Joe Comartin: I'm sorry, an appeal in French.
Mr. Justice Michael J. Moldaver: I think there are about five or so. Justice Karakatsanis has—
Madam Justice Andromache Karakatsanis: I think there are five who were called upon, including me.
The Acting Chair (Hon. Rob Nicholson): I think that will have to be it, Mr. Comartin. There will of course be a second round.
Colleagues, there will be an unscheduled vote in about another 15 or 20 minutes. My proposal is that we get through another one or possibly two, and then we'll have a break. We were going to have a break anyway, but I guess we don't have much choice at this point in time.
Mr. Dechert, go ahead.
Mr. Bob Dechert (Mississauga—Erindale, CPC): Thank you, Minister.
Justices Karakatsanis and Moldaver, I only want to say it's a great honour for me to meet you both and to have been a part of this process, both as a lawyer and as a member of Parliament. Here we are, two of the pillars of our democracy, which is so important, and I think it's a really wonderful, important, and historic day for Canada that you're here to address all Canadians.
I was really honoured to be a part of the selection process. I would note that in the process, the list we submitted to the Minister of Justice and to the Prime Minister was arrived at by consensus by all the members on that committee. It was a very collegial process, as I know your work is on the Court of Appeal.
Having said that, I'd like to start, if I could, with Justice Moldaver.
Justice Moldaver, I am very well aware of your long history as a very eminent counsel before you were appointed to the bench. You mentioned it in your opening remarks. I noted from your resumé that you practised as a sole practitioner at a boutique specialty firm and at a very large and general law firm. Could you comment on how your long experience as a member of the practising bar prepared you for life on the bench, for life on the Court of Appeal, and eventually for service as a member of the Supreme Court of Canada?
Could you give us a sense of how the practice of law may have changed in the years since you were practising as eminent counsel?
What advice would you have for members of the practising bar appearing before trial division, or at the Court of Appeal, or ultimately at the Supreme Court of Canada?
(1700)
Mr. Justice Michael J. Moldaver: Thank you very much for that question.
My years of practice taught me that what had caused me to go into criminal law to a certain extent was not quite accurate. I was a great fan of Perry Mason, and so was everybody in my household. I had this impression that if I went into criminal law, it would be wonderful to engage in cross-examinations in the courtroom and have witnesses faint, confess, and so on. That never quite happened. In fact, the harder they were pressed, the more they stood their ground.
I quickly realized that the courtroom was not a fun place. To tell it the way it was, the great bulk of my practice was spent trying to help people. It wasn't going to court. It wasn't having a trial. It was just trying to help people who had run afoul of the criminal law, who had various problems, whether they'd be drug problems, gambling problems, alcohol problems, or whatever they might be. You'd take as much time as you could with them prior to their pleading guilty, perhaps of the crime they were charged with or perhaps of some lesser crime, trying to get them into a position to deal with the problems that caused them to become involved in the criminal law to begin with, in the hopes that after this was all over, they would either be fully or at least partially on the road to rehabilitation and that they would become decent, responsible members of society.
Many people, students I would talk to about this, would say my role is more like a social worker's. I said that it may be, but that's just fine because I'm here to help people, and if helping people means getting them help, not going to trial, and not taking frivolous trials when they are clearly guilty, that's the way I'm going to approach my task.
Sometimes you had to go to trial, and when you went to trial... speaking for myself, I lost a piece of myself every time, whether I ended up winning...I didn't end up winning. The most important thing is whether my clients ended up winning or losing. When I would lose a client to the Kingston Penitentiary for life, it hurt, and it hurt for a long time. You win a case and you're on a high for a night, and you're on to the next one. You lose a case, and I wouldn't let you see it if I were walking on the street and met any of you, but my tummy would be hurting for a long time. I would be second-guessing myself and thinking what I could have done, what I should have done, what I didn't do, as I drew up the papers for the appeal, hoping that somehow I could rectify the situation.
Part of that was that I practised law in a way that I didn't really want to go to trial on any sort of a serious case unless I believed or at least had a reasonable doubt in the innocence of my client. That is not the traditional view, but that is the way I practise. If I didn't have that belief in my client, I could not speak properly to juries. I could not be sincere. My voice would change if I were arguing something I really didn't believe in. That caused greater pain, though, when I lost someone to Kingston.
I guess the point of that is just to say that I think you have to be very discerning in the practice. I think those who enter the practice of law, whether it be criminal law or civil litigation, have the idea that going to court is some wonderful experience. It isn't. There's absolutely no certainty in the courtroom. You can prepare to the nth degree and still lose. I can tell you in detail about my losses, if anybody were ever interested. I forgot a lot about my wins.
That was it. There's a very human side to the practice.
I'm sorry if I'm going on too long. I'm just not quite sure where you'd like me to go.
Sir, if you could just tell me the third part....
(1705)
Mr. Bob Dechert: Have you any advice for counsel practising today, both at the trial level and perhaps before the Supreme Court?
Mr. Justice Michael J. Moldaver: I think that's a very important question. I know things I have said have been taken the wrong way, in my respectful view. I've always held in the highest regard good, competent advocates. They're the backbone of our trial system, from the defence bar, from the crown's point of view.
The simple truth is if you have a good crown and a good defence counsel, you'll resolve 98% of the cases. That's the truth of it.
I say to counsel, be responsible; bring Charter applications, but take a hard look before you do. Remember that we have a justice system that is in many respects overburdened with long and complex cases, and the really good counsels, the counsels I respect enormously, don't waste the court's time. They pick their spots. They choose their Charter motions and so on and they make a compelling argument, or at least an arguable case, and win or lose, no judge could question the propriety of their conduct.
I think I'm done. I could go on for a while.
The Acting Chair (Hon. Rob Nicholson): Thank you, Your Honour. We appreciate that very much. We're right out of time.
To one of my predecessors as Minister of Justice and a veteran of this process, Irwin Cotler.
Hon. Irwin Cotler (Mount Royal, Lib.): Thank you, Mr. Chairman.
The issue of bilingualism has been raised by my colleague. I happen to be a Quebecer, and as you know, the Quebec bar has made a statement to the effect that citizens and counsel appearing before the court should not only have the right, which they do, to plead in either of the two official languages, but to be expected to be understood in either of the two official languages.
I want to close on this point, because I think you've already responded by saying, as far as I can appreciate it, that you're not the first unilingual judge to be appointed to the Supreme Court, and I would hope that you will follow the principle and precedent of your colleagues who have become bilingual. I appreciate the undertaking that you made before us today to do exactly that.
I have a question that I'd like to put to the two of you. It wasn't something I was necessarily going to ask, but I have to say I was very moved by the respective discussions by each of you of your backgrounds, of your family backgrounds, of your family values, which you internalized growing up. The question I want to put to each of you is, if you can share with us and the public at large, who have been some of your heroes? Who are some of the legal role models you have who have inspired you in your work? What are some of the life experiences that have brought you to where you are today?
Since you've made reference to your families, and rightly and significantly so, I would ask you to do so at this point without reference to the families when we discuss these inspirational people, role models, and the like.
Madam Justice Andromache Karakatsanis: The first hero for me is one of the great jurists, who was already mentioned by Justice Moldaver. Justice Moldaver worked with him in private practice when he was a defence counsel.
I clerked for the Ontario Court of Appeal in 1982 and I had the privilege of clerking with G. Arthur Martin. In those days he was my hero. We would go once a month to Kingston to do the prisoner appeals, and I was always the law clerk who volunteered to go to Kingston, because I got to sit beside Justice Martin on the train on the way to Kingston and would be able to hear him talk. Just to spend the time with him was extraordinary, but I also did work for him. He could pinpoint a reference—on a particular page in a particular volume—in a particular case. I've never met anyone else who has had such an extraordinary memory and understanding of the criminal law.
I worked with Pat Hartt on a couple of trials early in my career. He said to me that there is never ever any excuse for lack of civility in a courtroom, no matter what the circumstances—by anybody, but especially by a judge.
In government I worked with Chief Justice McMurtry and Chief Justice Pat LeSage. In fact, I think it was as a result of their example and inspiration that I thought what I'd really like to do is be a judge.
That tradition has carried on. Chief Justice Winkler has been an amazing role model for me. He was my senior regional justice when I was a trial judge in Toronto. He gave me certain responsibilities in respect of small claims court, and he let me run with them, and he was always there for advice. He has been an extraordinary chief justice.
I've been really grateful for the opportunity to have such wonderful role models and legal heroes.
(1710)
Mr. Justice Michael J. Moldaver: Just to pick up, in terms of the bench I couldn't agree more. I went to the Court of Appeal just when the Honourable Roy McMurtry came on—almost at the same time. I think I was there about a month before him. What a remarkable man, what a remarkable leader he was. I could go on at great length and heap praise on him—I still call him "my chief"—but I won't; there are time constraints.
The Honourable John Morden, of course, was Associate Chief Justice, and again just a giant, an absolute giant, in the legal profession.
One thing I've noticed, and I'm going to tell you a few names in a moment, is that the biggest people I've met and the ones I have the most respect for have consistently been the most humble people I have met.
Justice Karakatsanis mentioned the Honourable G. Arthur Martin. He was the most humble, decent, kind man. I never heard him raise his voice in the Court of Appeal. He knew more criminal law than anybody in the whole room, but he didn't make you feel bad. He would actually teach as he told you where you were wrong, and you always walked out—win, lose, or draw—feeling that you'd had a good hearing and that you had been in the presence of greatness.
But to go back to law school, in first year law school at U of T we had mentors who took a group of eight or ten people. Believe it or not, I was fortunate enough to have someone by the name of David Johnston, His Excellency the Governor General. He was the nicest man. I was nervous as could be starting law school—you heard me say I didn't do very well the first term—and he was so generous and so kind and so helpful. He had us over to the house; we met his wife, and he had us for dinner. What a delightful, wonderful man, and look at where he is today.
And John Willis.... I don't know whether any of you know John Willis, but he followed on the heels of someone by the name of Marty Friedland, who was teaching me criminal law. Then Marty had to go down for a sabbatical to Australia and John Willis took over. And John Willis could teach anything. He could teach administrative law, he could teach torts. As it happened, he filled in for Marty Friedland, who was a great lecturer in criminal law. But John Willis taught us criminal law by putting one sentence, one example, on the board. We didn't have to look at a book; we didn't have to look at a case. He took us through the basics of criminal law in one sentence on the blackboard. He was just a giant as well.
Alan Mewett taught me evidence. He was a great, great person. He again was someone who could walk into the class virtually without a note and just talk, because he knew his subject so well.
Those are a few of the people. When I started a practice, of course, I had the great good fortune to practise with Eddie Greenspan. I don't have to tell you what a wonderful criminal lawyer he is.
Perhaps I could leave it at that; I'm going on too long. But I am really fortunate to have been exposed to some extremely exceptional people.
Thank you.
Madam Justice Andromache Karakatsanis: Can I add one more person?
The Acting Chair (Hon. Rob Nicholson): Go ahead.
Madam Justice Andromache Karakatsanis: It's Professor Peter Hogg.
Voices: Oh, oh!
Madam Justice Andromache Karakatsanis: He taught me in first year. I think it was constitutional law. I took every single course he offered thereafter. He was the best teacher I ever had.
Mr. Justice Michael J. Moldaver: Can I add one thing to that, too?
He appeared in front of us once in the Court of Appeal, and unfortunately he lost. But he was vindicated in the Supreme Court of Canada.
Voices: Oh, oh!
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The Acting Chair (Hon. Rob Nicholson): I love it.
Colleagues, I'm going to propose that we take a 15-minute break. I apologize to our witnesses. Unfortunately, we have a vote in the House of Commons that we have to go to right now.
Thank you very much. We'll suspend for 15 minutes.
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--------------(Pause)---------------
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The Acting Chair (Hon. Rob Nicholson): Thank you very much, colleagues. Sorry for that interruption, but I hope it gave us a little break.
We'll continue, and I'll ask my colleague, Mr. Rathgeber, to start the questioning again.
Mr. Brent Rathgeber (Edmonton—St. Albert, CPC): Thank you, Mr. Chair, and thank you to the witnesses.
I join with my colleagues in indicating what a great pleasure it is to meet you both, having read a significant number of your judgments and published papers in the last couple of months. It's certainly an honour to meet you both in person, and congratulations on being nominated for this esteemed position.
I have a very simple question for you, My Lord. During Madam Justice's opening comments, she spoke partially in French. I noticed you had an earpiece in your ear. Did you have any difficulty understanding or following the flow of her opening statement?
Mr. Justice Michael J. Moldaver: I'm looking at the translators. It was very clear, so I commend the translators because I thought they were doing a marvellous job.
Mr. Brent Rathgeber: Right, and I agree. And you are no doubt aware that the Supreme Court of Canada offers the high calibre of simultaneous translation we enjoy here at the House of Commons. You know that?
Mr. Justice Michael J. Moldaver: Yes, sir, I do.
Mr. Brent Rathgeber: Thank you.
I want to change directions. I want to talk a little to both of you about the phenomenon of television cameras in the courtrooms.
Madam Justice, you talked about open courtrooms and that being part of the whole issue of accountability. In the United States we've seen quite an evolution in the last couple of decades regarding television cameras in the courtrooms. They have their detractors and they have their proponents. The advocates argue that it leads to openness and transparency and perhaps demystifies the process, but the critics, and I think I fall into that category, would argue that it occasionally turns lawyers and sometimes judges into media stars and it occasionally turns the process into a bit of a spectacle, maybe even a sideshow in the States, when there are cameras.
So I have two questions for each of you, and perhaps I'll start with Madam Justice. You've both been trial and appellate court justices where there are no TV cameras. You will presumably and possibly be becoming justices in the Supreme Court of Canada, where they do have cameras. So my first question is, what are your thoughts on becoming a TV judge?
Second, what are your thoughts more generally? There has been some consideration of allowing cameras into the trial courts, and you have both been trial court judges and I'm interested in hearing your comments on that.
We'll start with you, Madam Justice.
Madam Justice Andromache Karakatsanis: This is a subject I haven't given a great deal of thought to. I must say that I would have absolutely no difficulty with having cameras in the Supreme Court of Canada. It makes a lot of sense to me that the public have a chance to see how the court works and to hear the arguments of counsel.
I think the issue is much more difficult when it comes to trial courts.
When I was chair of the Liquor Licensing Board of Ontario, we decided at that time we'd let the cameras in, much as it happened today, at the beginning of the hearing, but once a witness started to testify, the cameras were no longer rolling.
As a trial court judge I know there are policies. I've forgotten precisely what they are, but certainly no cameras during the hearings themselves. Like so many things, there are arguments to be considered in favour of more openness, more transparency, opening it up to even greater audiences, and allowing Canadians to see how trials work. I think that would be a very positive thing.
On the other side, you have to worry about whether there's a potential for any negative impact on the way the trials themselves proceed, and I'm thinking particularly of how witnesses may feel about being televised, and of course there are also some issues in certain kinds of cases. There would be some privacy implications as well.
So that's a great question. I can't give you a great answer. I haven't thought about it enough.
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Mr. Brent Rathgeber: You're going to reserve judgment.
Madam Justice Andromache Karakatsanis: I'm going to reserve judgment. Thank you.
Mr. Brent Rathgeber: Mr. Justice Moldaver.
Mr. Justice Michael J. Moldaver: Thank you.
It is a great question. I have no difficulty whatsoever with cameras in the appellate courts, if that is what people want. It's a very different forum than the trial court, as we all know.
The only experience I've ever had with cameras in the court room at the appellate level was in the Steven Truscott reference. For about a minute and a half we notice them. Of course, once you're into the argument and the debate, it's as if they're not even there. I can say without hesitation that I don't think it impacted whatsoever on the way I or any of my colleagues conducted ourselves. As I say, it was as if they weren't there. Having said that, if you decide to put cameras in the appellate courts, I'm not sure how broad the audience would be, but that's a different matter.
Trial courts, in my view, are a very different thing. The stresses and pressures can make it a very nerve-racking experience for witnesses. It can be a dreadful experience for complainants in sexual assault trials, for example, when talking about the most private things in their lives. That's one, in my view, that would have to be very much studied. I would never want to see our trials turn into what we regrettably saw some years ago in the United States in a particular case. We cannot, with respect, ever allow something like that to happen.
I would go very carefully in terms of the trial courts. As far as the appellate courts go, I have no concerns.
Mr. Brent Rathgeber: How much time do I have?
I'll defer.
The Acting Chair (Hon. Rob Nicholson): Okay.
Thank you very much.
Madame Boivin.
[Translation]
Ms. Françoise Boivin (Gatineau, NDP): Thank you,
Mr. Minister.
I am among those who are so hooked on the Supreme Court of Canada that I watch its deliberations on television on Sunday mornings. I will tell you why.
I had an absolutely extraordinary experience. This is not going to make me seem younger, but in 1985, I pleaded for the first time before the Supreme Court of Canada. I was probably very innocent and very naive, and I probably felt like you who are here before us this afternoon. I was very nervous and wondered if they were going to listen to me, understand me, etc.
Life defines us according to how certain moments unfold, according to whether things go well or not.
I had the good fortune to have before me a panel of three judges. My objective was to get permission to appeal a case before the Supreme Court of Canada. I was very young, just out of university, and totally enraptured. I'm sure you see where I'm going with this. I appeared before a panel of three judges who understood French. I pleaded in my language, I took part in a dialogue and I found the experience extraordinary. Afterwards, they were kind enough, in light of my young age, to take the matter into advisement. Even though they refused to hear the appeal two days later, that wasn't the point, I had had my moment of glory before the Supreme Court.
The point of all this is to tell you how important the Supreme Court is, extremely important not only for lawyers but also for those whose cases are being heard.
I read the two files we were given and legally speaking, your backgrounds are extraordinary, I have no doubt whatsoever on that.
However, there is a problem, Justice Moldaver. I am from Quebec, I have practised my whole life in Quebec as a lawyer, I have practised both criminal law and labour law. I know how important it is for people to be understood, not only through an interpreter.
Indeed, here in the Parliament of Canada, I have forced myself to do something I never do because in all humility, I am perfectly bilingual. I have been listening to the interpretation channel.
I will always remember a judge of the Appeal Court of Quebec—I have forgotten his name—who told us that when we plead before them, they won't be redoing the trial. The situation is similar with the Supreme Court of Canada. We go there to attempt to convince the judges that there has been an error in law, that very specific technical issues have to be reviewed, and everything depends on specific words. I was told that judges are generally 80% certain of which side they are on, that there are no surprises, but they maintain a small margin of discretion. There is a small percentage left, just in case we say something in our argument that could convince them.
I must say I do like the parliamentary interpreters and those of the Supreme Court of Canada, they do extraordinary work. However, Mr. Justice Moldaver's jokes were lost in translation. I only say that to bring out the fact that certain nuances are lost.
You both talked about the importance of the rule of law. I have lived my life thinking that that is what we lawyers, judges, etc., represent.
Mr. Justice Moldaver, you had the opportunity since 1990 to learn French. If you had the ambition of one day of sitting on the Supreme Court of Canada, you must also have known that, according to the statistics we have, at least a third of the case files are in French.
I'm not only speaking as a Quebecker, because there are a lot of francophones outside of Quebec as well. There are Franco- Ontarians, Franco-Manitobans, etc.
You are going to receive documents from those people and you are going to have to depend on a clerk. I knew one whose name was Hugo Cyr. He is now an eminent constitutional expert, in my opinion. He told me that when he was a clerk at the Supreme Court for Justice Binnie, files were not necessarily translated in their entirety. This gives even more importance to the work of the clerk and your other colleagues at the Supreme Court of Canada. And I am not convinced in that sense that this is satisfactory. In fact, I am not convinced at all.
I am saying this with all due respect—this is the formula lawyers use in order to look polite even when they are saying something that isn't very polite— I am not at all convinced that that is sufficient to accede to the highest court in the land, because you are going to be having to depend on your clerks.
In spite of all the good will of translators, your colleagues and so on, I don't think this is a good thing for the Supreme Court of Canada. If we truly believe in bilingualism in this country— and I do believe in it— we have to do more than simply pay lip service to it. To quote my colleague Mr. Cotler, without wanting to put him on the spot, it's not enough to say that one has heard something before.
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As my colleague Mr. Comartin said, Mr. Justice, I couldn't be more of a fan. I even watched in 2006, before I was a member of Parliament. I found it quite sad to see such a judge accede to the bench of the Supreme Court, but I told myself that people had to be given a chance. Unfortunately, he didn't really keep his end of the bargain, to use a very French word.
Mr. Justice Moldaver, according to the information I see in the file, you have made no effort since 1990. So how can you reassure me? I wonder if you believe that the people who go before the Supreme Court have the right to be heard in the language of their choice, and whether judges should be able to understand the lawyers as well as the information in the file.
[English]
The Acting Chair (Hon. Rob Nicholson): Mr. Justice Moldaver, we're just about out of time on this one, but go ahead.
Mr. Justice Michael J. Moldaver: Thank you very much for that question. It's a very important question; I don't doubt that for one moment.
My simple answer to you, Madame Boivin, in terms of why I did not further my French.... I don't want to be misunderstood here. I actually loved French in high school, I loved it in university, and I really enjoyed the language. I am looking forward, if my nomination is approved, to taking it up again. I'm hoping I have my brother's genes; he became a doctor in French literature. I absolutely love the language.
When we have conferences...we used to teach at new judges school in Quebec, and I loved talking to the judges from Quebec and talking a little bit of French here and there. It's a wonderful culture, and I'm looking forward to it.
Why didn't I do it when I had the opportunity? Quite simply, I never expected to be here, not in my wildest dreams—never, ever. If someone had given me a crystal ball when I was in university or whatever and said, some day you're going to be before a committee and have a very important question put to you, like the one you just raised, believe me, I would not have squandered those years.
We have wonderful training for judges. There were times that I thought I would like to take it up, and then other things got in the way, and so on. But the simple answer is, I never thought I would be here.
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The Acting Chair (Hon. Rob Nicholson): Thank you.
Monsieur Goguen.
Mr. Robert Goguen (Moncton—Riverview—Dieppe, CPC): [Inaudible—Editor]...participating in this historic event. It's indeed a pleasure to meet such learned members of the judiciary. We all know as lawyers and judges that's it's always more fun to ask the questions than it is to answer them.
I noted a while ago, Mr. Justice Moldaver, that you said the courtroom is not a fun place. I guess I could start by asking you, are you having fun yet?
You don't have to answer that.
Voices: Oh, oh!
Mr. Robert Goguen: In any event, as uncomfortable as this may be, certainly it presents to the public a rare but perhaps comforting probe into the judicial mind. I don't think there are any questions we can stump you with.
[Translation]
I am going to ask my questions in the language of Molière. Perhaps I won't speak as rapidly as Ms. Boivin, because this certainly isn't an auction, but my question concerns judicial interpretation in the context of the Canadian Charter of Rights and Freedoms.
The Supreme Court of Canada is often called upon to interpret a particular piece of legislation, and in doing so, it must hand down an interpretation that is in keeping with the evolution of Canadian values. This has been done since the Canadian Charter of Rights and Freedoms was introduced.
Some will say that this process allows the law to develop. How can we reconcile that exercise with the importance of maintaining a certain stability and giving certainty to our citizens?
Madam Justice Andromache Karakatsanis: That is a very good question, but not an easy one. In fact, it's not even easy in English.
I know that the Canadian Charter of Rights and Freedoms makes my work as a judge both more interesting and much more difficult. Sometimes, we have to balance important fundamental values enshrined in the Charter. However, there are always rules and jurisprudence that must be taken into account. Sometimes, there is a way of finding a balance to protect different values.
Stability is important but evolution is just as important because society changes. After a few centuries or a few decades, it is important to find ways to reflect that change. However, we are not looking for radical change, we leave that to the lawmakers. Our job is to apply case law and to further evolution in doing so, to have a good factual context and to really find a way of respecting the different values that Canadians hold dear.
Have I answered your question?
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Mr. Robert Goguen: Does the judiciary role include rewriting or reinventing the law, or does it require you to respect the certainties, which is also the role of Parliament?
Madam Justice Andromache Karakatsanis: With regard to judiciary power, this is the power to see to it that laws are applied, and to examine those laws in light of the provisions of the Charter and of jurisprudence. It is not our job to create law but to apply it. It is your job to create law, that is the legislative power.
[English]
The Acting Chair (Hon. Rob Nicholson): Mr. Harris.
Mr. Jack Harris (St. John's East, NDP): Thank you, Chair.
Welcome to our committee. I appreciate that it's a nerve-racking process for you.
I will say that I've just been appointed, only a couple of days ago, as the justice critic for the New Democratic Party, so this is a rather swift introduction to this new portfolio for me.
Mr. Justice Michael J. Moldaver: Congratulations.
Mr. Jack Harris: But I have been a member of the bar for 30 years, having been sworn in, in 1980—"admitted", I think, is what it's called—and have practised in all levels of the courts of our country and at many tribunals. So I'm very familiar with some of the stories of your careers, and I am very interested in your own personal backgrounds and the great strides you have made in your lives to get here.
I think one newspaper called this process today "a gentle grilling". I don't know whether I'm going to change the tone of that by my comments, but I want to ask a couple of questions.
Mr. Justice Moldaver, you are reported to have given what one reporter called "provocative speeches" to the Canadian Bar Association or the Criminal Justice Association. We're talking about a time four or five years ago now. You started to talk about this in answer to one of the earlier questions, but I would like to give you an opportunity to perhaps clarify the situation.
You yourself, I understand, came of age as a criminal lawyer after ten years or so when the Charter was first introduced, and you have a sterling record, I understand, for being one of the lawyers who has brought important challenges under the Charter of Rights into courts in Ontario, for which I commend you. Yet as a judge you have been thought to be discouraging of those kinds of applications being brought to the court. Maybe that's why the government would like to appoint you; I don't know.
Can you explain to me, and to those listening and to the committee, why you made those remarks? Do you actually seek to discourage Charter challenges because they clog up the courts and take up too much time? You made some very positive remarks about the importance of the Charter—maybe you would want to reiterate them, though—but it's a little worrisome that you appear to have a reputation for discouraging Charter challenges.
Mr. Justice Michael J. Moldaver: Thank you for that question. Again, it's a very important question.
To the extent that the label is that I have either purposely or in its effect tried to discourage Charter challenges is, with great respect, completely wrong. I have never discouraged Charter challenges, and if you were to look at the addresses in question, I have made it abundantly clear that counsel are perfectly entitled to raise Charter matters. All I ever wanted to do was just say that one should think about these Charter applications, because I have been part of the criminal law for a lot of years now.
I have seen criminal trials, murder trials, go from seven days long to seven months long, sometimes years long. I've seen sexual assault trials go from two days long to going on forever. I'm not the only one who has talked about this, by the way. The late Chief Justice Lamer was concerned about it. Our present Chief Justice of the Supreme Court of Canada has talked about it. The Honourable Mr. Justice Binnie recently talked about it. I just don't want abuses. The people I was talking about...I was not broad-stroking and never intended to broad-stroke the defence bar. I say that and I stand by it. That was never, ever my intention.
The lecture I gave, by the way, was the Sopinka lecture. The Honourable John Sopinka was a great friend, and one of the greatest judges in this country. The lecture was on advocacy. I took the opportunity to say in the context of that lecture that criminal trials were spinning out of control, and part of the problem was Charter motions being brought with not a lot of thought being given to them. My first point was to be discerning, not to look at the Charter as one's personal genie in the bottle. That's what I said in the talk. But beyond that, the talk was about advocacy. Good advocates do not throw up everything in front of a trial judge and hope that something sticks. That is not good advocacy.
In terms, though, of the complexity and prolixity or length of trials, again, with great respect, if you look at what I said, I said this is not a problem that is singular to the defence bar; this is a problem that everybody, all the stakeholders, have to take responsibility for: crowns, judges, members of Parliament, police—everybody who is a part of the system. I didn't want to throw stones at anybody. I wanted people to come together, to make our justice system better, to work better for a common goal. That is what I had in mind. Unfortunately, it got taken the wrong way and I was accused of being a Charter basher, and so on and so forth. I responded, and I responded forcefully, because, with great respect, when someone impugns my professional integrity, I'm going to do what I can to restore it.
Let me just finish with one thing. The main complaint at the time, as I recall it, is that everything I'm saying is just anecdotal. It wasn't anecdotal to me. I'm sitting in the appeal court every day, seeing transcripts going up to the ceiling. I knew what was going on. But if there is any vindication needed for the concerns I had...because 1% of the bar can make a mess of the justice system; just 1% or 2% or 3% can cause an enormous drain on the justice system. If there's any vindication needed, I commend to you the LeSage-Code report. The Honourable Patrick LeSage and Michael Code, now the Honourable Mr. Justice Code of the Superior Court, made it perfectly clear that what I had described or what people were accusing me of, of just talking anecdotally.... They made it clear: this is not anecdotal. There are some abuses out there and they have to be dealt with. That said, abuses by the crown or the police or anybody else have to be dealt with, including the trial courts and the courts of appeal. We have to be alive to all this.
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We just have to work together. My intention was not to demean anybody, certainly not the defence bar, which I was a member of for 17 years. I wanted to try to make the justice system a little better; that's all that was behind it.
The Acting Chair (Hon. Rob Nicholson): Thank you, Your Honour.
We'll move to Patrick Brown now, please.
Mr. Patrick Brown (Barrie, CPC): Thank you, Minister Nicholson, and thank you, Justice Karakatsanis and Justice Moldaver, for being here today as part of this open, transparent process.
Section 53 of the Supreme Court Act enables government to refer important questions of law and constitutionality to the Supreme Court. What do you view as the role of the Supreme Court, given that if a government wanted, it could just present legislation on a "wait and see" basis? How do you view section 53, in terms of the Supreme Court's role?
Madam Justice Andromache Karakatsanis: I'll start.
Obviously, if a reference is brought to it, the Supreme Court has the obligation to determine the reference.The decision about whether to bring a reference or not is one for the government—I think maybe even the Senate, in some circumstances; in any event, it's not a decision for the court.
I don't have a great deal of experience with references, and I understand they're relatively rare, and that's probably because every trial or appellate judge will tell you that decisions work best when you have a full factual context and a full record. That allows you to take the legal propositions and test them against the facts. That's the way the law evolves. That's the way we can apply really quite a rigorous analytical approach, as required by the jurisprudence.
Obviously there are times when government will feel that an issue is so important or that for some reason there isn't time to let it come up in the normal way that a reference would be appropriate. Obviously the court has to deal with it and deal with it very well. They're all important issues.
The other real disadvantage, of course, for the court is that you don't have the benefit of the decisions below. By the time a matter gets to the Supreme Court, usually they will have the benefit of the judge of first instance and of the Court of Appeal, and that reasoning, even if you don't agree with it, helps test some of the legal propositions.
I hope I have the opportunity to deal with a reference on the Supreme Court of Canada.
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Mr. Justice Michael J. Moldaver: I would just add briefly to that —and I agree with my colleague completely—that there is no hint, from what I can make out, that the section you refer to has in any way been abused. It's used very rarely and it's used on matters that are of great public importance.
So much as I have not had any direct experience with the various references that have been before the Supreme Court in the past number of years, it seems to me it's a very important provision, and used sparingly I think it can be very valuable.
Mr. Patrick Brown: Madam Justice, you mentioned in your opening remarks the three branches of government. Do you believe that the executive, legislative, and judicial branches are truly equal?
Madam Justice Andromache Karakatsanis: I think they are all equally important. They're very important, all of them. Those are the three pillars. They are the foundation of our constitutional democracy, and I believe deeply in them.
Mr. Justice Michael J. Moldaver: I would put it a little differently in terms of your question, which is an excellent question.
We all have our jobs to do. If we all do the jobs we are assigned, then the system and our constitutional democracy will work very well. If we stray into areas that are not within our responsibility, then we put at risk the essence of our constitutional democracy.
Mr. Patrick Brown: Do I have any time left?
The Acting Chair (Hon. Rob Nicholson): You have time for one more. Go ahead.
Mr. Patrick Brown: I imagine the goal of the Supreme Court is to deliver justice, to provide justice. What is your definition of justice?
What is your view of justice?
Mr. Justice Michael J. Moldaver: What is our view of justice, did you say?
Mr. Patrick Brown: Yes, what is your definition of justice?
Mr. Justice Michael J. Moldaver: Well, at one level, and a very simple level, justice to me is having people walk out of the courtroom feeling that they've had a fair and just hearing, and that win, lose, or draw they know they have been heard and that the court has taken their matter seriously and has looked at it objectively, that the court has come in not having made up its mind beforehand and has given its best assessment of what are often very difficult situations. That is one definition of justice.
But justice to me involves fairness, it involves humanity, it involves having a heart. But it also involves being firm when you have to be.
The Acting Chair (Hon. Rob Nicholson): Thank you.
I will go now to Mr. Sandhu.
Mr. Jasbir Sandhu (Surrey North, NDP): Thank you, Mr. Chair.
I have a couple of things in common with Mr. Justice and Madam Justice. I too never imagined I would be here introducing the nominees to Canadians. My family does own a restaurant, although —it is an Indian restaurant—I can't boil an egg myself, let alone for 35 people.
It's an honour to be here and to be part of this process, although I have many questions regarding this process. I see this committee as an opportunity for you to introduce yourselves, Mr. Justice, to Canadians. I don't see this committee as an opportunity for the opposition or the government MPs to grill you. This is more an exercise whereby we introduce you to Canadians. I believe the Prime Minister has already made his decision in nominating you, and congratulations on that.
Getting back to the process of how judges are nominated and how they're picked and how you've come here, the process is not very clear to me. There are many experts out there in the media, and you've probably read some of the newspapers—the experts, the pundits, and many Canadians who are talking about this on blogs— with regard to the process not being transparent and not being accountable. Some have gone as far as seeing it as a partisan process.
Part of the reason, I think, that people are talking about it is that it's not clear to them what the process is. It has been rather behind closed doors. We've had committees made up that have gone in camera. We can't really find out what happened there and how it is put together.
As a new MP from Surrey, British Columbia, I think it's important for me and for Canadians to know that over the years this process has worked in some ways, because we've had fine Supreme Court justices over the years, and I'm proud to say that we have a very good system in place to get them there. However, there are some shadows, lingering cynics out there, including me, maybe.
How can we make this process more accountable, more transparent, and maybe to cynics less partisan?
Madam Justice, you've had some experience in administrative justice, so I'm sure you'll be able to respond to this.
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Madam Justice Andromache Karakatsanis: I'm going to follow Justice Moldaver's advice and not stray into an area that's not mine to decide or determine. Really, it's not up to judges to decide what the process ought to be. I'm happy to participate in this process, I'm here, and I'm prepared to answer your questions.
As I understand it, though, it has been a process that has been evolving and has involved some rigour in the selection. I was pleased to hear that there was a selection committee that I think I heard was unanimous concerning the shorter list that was prepared.
I think it's very important, obviously, that judges have the highest qualifications to serve and that they have the necessary temperament and experience and expertise and qualifications. A process that results in judges of the calibre that we've seen is a good process. Whether it ought to be made different or whether it ought to evolve is not a question for me; it's a question for others.
I don't know that I've answered your question, but the short answer is that I really can't answer your question. It's not my job to design the process.
Mr. Jasbir Sandhu: I put the same question to you, Mr. Justice Moldaver.
Mr. Justice Michael J. Moldaver: I agree with my colleague. I know of the articles of which you speak. This clearly is something for you, not us.
I'll just say this, though. The people who allow their names to go forward, particularly for this highest position in Canada.... I guess the questions would be, should their names be public, should they be exposed publicly, should they have to go through, while the process is going on, having newspapers and everybody digging into their private lives and so on? It could be quite embarrassing and it could be quite an invasion into people's privacy.
It's your process, and we respect it, but I ask you to consider that there are feelings out there and sensitivities that I think have to be taken into account before we start saying, let's just open all of this up completely. It is a very sensitive process. I can't add more than that.
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The Acting Chair (Hon. Rob Nicholson): You have a minute.
Mr. Jasbir Sandhu: Thank you.
I'm puzzled myself, because not only am I new to this House, but I'm also puzzled because I completely don't see the transparency in the process of selecting Supreme Court judges. Does it diminish the position if there's no transparency or no credibility to your position when you do become a Supreme Court of Canada justice?
Mr. Justice Michael J. Moldaver: There is transparency to a certain extent in this hearing.
In terms of keeping abreast the elected members of Parliament of our country—from what I can understand, there were people from all the parties on this selection committee, so that certainly....
Mr. Comartin, I think you were on this committee, and you could certainly be the conduit to the members of your party?
No? Okay. I didn't even know that. It shows what I don't know.
Mr. Joe Comartin: I was sworn, as all of us were sworn, to note, Mr. Justice Moldaver, that we can't discuss what went on at the meeting.
Mr. Justice Michael J. Moldaver: Okay, then I desist. You see, I don't even know what the process is.
Sorry.
The Acting Chair (Hon. Rob Nicholson): Thank you very much.
Any other comments we'll have to get on a second round.
Mr. Woodworth.
Mr. Stephen Woodworth (Kitchener Centre, CPC): Thank you very much, Mr. Chair.
Thank you, Justice Karakatsanis and Justice Moldaver.
I can only imagine what you're feeling right now. I just want to extend to you my appreciation for your attendance here today, and in particular for your excellent opening remarks. Quite frankly, I was a little dismayed at the end of it because you answered so many of the questions I wanted to ask you. I thought you were spot on.
Before I ask you anything, I would like to comment on what I perceive to be the best thing about this hearing this afternoon, and that is, by opening up your lives to Canadians, you allow those people who are watching and listening to understand how much you have in common, how much they have in common with you, right from the question of immigrant roots to your youthful work experiences, your favourite TV programs, the fact that you have proud parents and are proud parents, and even, if I may say, Justice Moldaver, what you've shared with us about leaving a piece of yourself with each case you tried. I think every Canadian, I hope along with me, will say, "That's me too. That's where I come from." In a democracy, I think it's highly important that the people we choose to make decisions for us share the same roots as most of those in our community.
Having said that, one of the things that's always intrigued me about judicial decision-making is that two equally fine judges can consider the same facts and legal principles and come to opposite, or at least differing, conclusions. We have your list of cases, each of you, and we know that on occasion you've been appealed, on occasion perhaps you've been confirmed, and on occasion perhaps you've been overturned.
As justices of the Supreme Court, you're going to be in the position of dealing with other judges. I would be interested to know, when you are going to be reviewing lower court decisions, how you personally are going to approach that and what considerations are involved in that.
I'll start with Justice Karakatsanis.
Madam Justice Andromache Karakatsanis: It's interesting that you commented on our personal background and our family anecdotes because I think that is one of the important aspects of this hearing, that Canadians really understand that judges are human. And that's a good thing because our decisions impact on people. Not only do I think it's important to do the rigorous analytical work in reaching a decision, but I for one am always testing it. Does this make sense? What kind of an impact is that going to have on people, on communities? Does it feel right? Because if it doesn't, I'll go back and I'll think about it again until I get to a place where it seems right both in the head and in the heart too.
That really, I think, describes as well my approach to dealing with appeals from, in my case, people who are my former colleagues from not that long ago. There's always a way you can explain very clearly, sometimes forcefully, why you are deciding in a certain way, but you don't have to do it in a way that's unnecessarily unkind or in a way that does not respect the hard work and effort the trial judges have put into doing their job and making their decision.
Why do we sometimes disagree? That's a good question. I think we all do the very best we can, and I think the advantage in the Supreme Court of Canada is that there are nine colleagues, nine judges, who are among the best jurists in the land, who can sit down together and deliberate and discuss and hopefully find that common ground that represents the right place, the right decision.
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Mr. Stephen Woodworth: Thank you.
Would you comment, Justice Moldaver?
Mr. Justice Michael J. Moldaver: Whenever I was overruled, I always said that reasonable people can disagree.
Madam Justice Andromache Karakatsanis: You overruled me and you were right.
Mr. Justice Michael J. Moldaver: Well, I'm not sure, but reasonable people can disagree. A lot of the problems we see are not just black and white. They are shades of grey. So someone can give a very reasoned set of reasons, a very compelling set of reasons, and someone else can look at it and say no, that's not right.
I've always been taught that you should never humiliate someone publicly. It's disgraceful. To the extent that we have to disagree with former colleagues, there's no purpose in making them feel any worse than they are already going to feel when they find out they have been reversed. I think we have to take conscious steps and efforts to temper our language and to temper the way we write our reasons. All of us are advocates in our own way. I know sometimes when I write a first draft it has to be toned down because I'm being an advocate in my own way, writing from my position.
We regularly do take steps and show it to colleagues and so on, for that very purpose, because we're trying not to be too hard on whoever the judge may be who has been overruled. That said, if there is a judge who is not following the rule of law on a regular and persistent basis, and we keep seeing the same thing over and over again.... I don't want you to think this happens very often, because virtually we never see it—almost never. But judges are bound by the rule of law, as we said, and if a judge does not comply with his or her oath and does it on a more regular basis, then some sharp language may be required.
Mr. Stephen Woodworth: Thank you.
The Acting Chair (Hon. Rob Nicholson): With your indulgence, I'll get some sort of sense from you, colleagues. We're going to move into a second round now. Did you want to break now, or did you want to go right into the second round? These are the shorter questions.
We'll keep going. All right.
Go ahead please, Ms. Hoeppner.
Ms. Candice Hoeppner: Thank you, Mr. Chair.
I just have five minutes, so I'm going to try to be very brief. Mr. Justice Moldaver, you said you were not quite aware of the process by which the short list was determined. I want to say that, from my understanding, the Minister of Justice did consult and he did receive names from across Canada as part of this process. I also want to say, without betraying any of the confidentiality that Mr. Comartin referred to, that the discussions we had were extremely collegial and collaborative on that committee. You can rest assured that your names, regardless of anything that might be inferred today, were agreed to unanimously as being part of that list.
I'm going to start with Madam Karakatsanis and see if we have enough time. We have certain individual rights enshrined in Canada in different documents. There are also collective rights that are enshrined in certain documents in Canada. I am wondering if you would be able to comment, obviously without getting too specific, on how a court of law should address the situation where individual rights and collective rights may come up against each other. What would your opinion and thoughts on that be, Madam?
(1830)
Madam Justice Andromache Karakatsanis: As I've said previously, the Charter is the one area where different values do come into play. Often, you can look at the facts and the record, and there may be a way you can respect all values without in any way losing an important value. There has been a body of jurisprudence developed over the past couple of decades that has an analytical framework, where first you have to look to see if there is a way different values can coexist and be accommodated so you can give full effect. There is no hierarchy of values. You have to look at each value in the context of the whole.
If it's inevitable that there be some give and take, you try to do it in a way that will minimally impair the rights. There is a rigorous analytical framework, and you just have to work your way through it. You work your way through. After you have read all of the factual context—the documents, the case law, and often academic work— you work your way through it. It's not a situation where you can just stand back and say, "This is what I feel", because they're all very important rights. The law requires that we go through a process to ensure we have addressed them as fully as possible, without compromising any rights if at all possible, and if necessary that it be done in the most minimal way possible.
I don't know if that answers your question.
Ms. Candice Hoeppner: Thank you very much. It does.
Does Justice Moldaver have a...?
The Acting Chair (Hon. Rob Nicholson): Do you want to make a comment, Mr. Moldaver?
Mr. Justice Michael J. Moldaver: I agree with my colleague. I would say this, that if we look at the law we see it as a spectrum—for example, in criminal law, collective rights and individual rights. On one end we have law and order and protection of society. At the other end of the spectrum we have individual rights and civil liberties. At various times and places in our jurisprudence the law might swing a little bit more that way or it might swing a little bit more the other way. The beauty of Canada, though, is that we are not a country of extremes. There are certain parameters within which we all act. There are certain things that are simply unacceptable to Canadians. If the law and order side goes beyond what the courts feel are the proper balance, then we have to send a message back to Parliament that you have gone too far.
The beauty of our country is that's not what we're all about as Canadians. While someone might be a little upset that the law has gone a little too far this way or that way, it's always within certain appropriate boundaries.
The Acting Chair (Hon. Rob Nicholson): Thank you very much for that.
Mr. Comartin.
Mr. Joe Comartin: Thank you, Mr. Chair.
Mr. Justice Moldaver, when did you decide you would like to be a Supreme Court of Canada Justice?
Mr. Justice Michael J. Moldaver: I'm not sure I ever really decided. When I got a call out of the blue, which caught me completely by surprise, all I can say is I didn't say I wouldn't let my name stand. I can assure you, Mr. Comartin, that I really never expected to be here. By the way, that call was in the last several months, so I'm not talking about long before that.
I can also tell you something else very honestly. I come from the most wonderful court in the world. I have great friends, great colleagues—the best people I could imagine. My attitude is that if it happens, maybe there's a higher reason. I don't know. And if it doesn't, so be it.
I hope that answers your question. I just learned about it recently.
(1835)
Mr. Joe Comartin: When were you advised that you were one of the two nominees? We want to know if it was Mr. Fife who called you because he got a leak about it, or did you get it from the Minister of Justice, or the Prime Minister's Office?
Mr. Justice Michael J. Moldaver: I hope I'm entitled to say. It was right after Thanksgiving weekend, and I wasn't really advised. I was about to go into court. I think it was October 7 or 8. It was the Tuesday, in any event. I was about to go into court and I got a call. I thought I'd take it. I didn't know who it was. I was asked if I'd be available to speak to the Prime Minister at four o'clock that day. I said we'd try to get court done by then.
Voices: Oh, oh!
Mr. Justice Michael J. Moldaver: That was it. That's all I knew. I had no knowledge before that.
Mr. Joe Comartin: Madam Justice Karakatsanis, when were you advised?
Madam Justice Andromache Karakatsanis: It was at the same time. In fact, when Moldaver came into my office to discuss a case that we were both working on, he looked quite excited. I didn't know whether he'd gotten a call or not. I was feeling the same way he was looking.
Mr. Joe Comartin: Are you aware of any of the other final six names—
Madam Justice Andromache Karakatsanis: No, I'm not aware of who they are.
Mr. Joe Comartin: —even to this day?
Madam Justice Andromache Karakatsanis: That's correct.
Mr. Joe Comartin: With your fairly lengthy experience in that other pillar of government, on the administrative side, has it ever given you any cause for concern when you're making decisions that you may tend to favour the government side over individual plaintiffs or claimants?
Madam Justice Andromache Karakatsanis: The answer is absolutely not. I approach each and every case with the view to doing the right thing according to the law, the facts, and the case before me. Sometimes cases turn out differently than you might expect. Sometimes they turn out differently than you might even have wanted, especially in the trial court where the facts seem to go one way initially and then move.
I do not believe it has ever been an influence for me to say that there was one party that I favoured over another. I take each case as it comes. I do the very best I can in each case, and whatever the right decision is I will make it. I very much value my integrity and my independence of thought, and I take my oath very seriously.
Mr. Joe Comartin: Thank you.
Mr. Justice Moldaver, have you set yourself a timeline within which you will be fluent in the French language, as far as having a working knowledge of it?
Mr. Justice Michael J. Moldaver: I can only say that I will never make a promise I can't keep. I can promise you that I will try to get at this as quickly as I possibly can. It gives me no joy to be sitting here feeling that I'm not going to be able to engage in a case in French for some time. I'll just do the best I can. That's all I can do.
The Acting Chair (Hon. Rob Nicholson): Let's leave it at that, colleagues.
Mr. Dechert.
Mr. Bob Dechert: Thank you, Mr. Chair.
Justice Karakatsanis and Justice Moldaver, I note from your very impressive resumés that you both spent significant periods of time as members of the trial division, proceeded from there through the Court of Appeal, and here you are today.
I'll start with Justice Karakatsanis. I wonder if you can elaborate on how your long and significant service on the trial division bench prepares you for the Court of Appeal and ultimately the Supreme Court of Canada. Maybe you can tell us a little about what your biggest challenge was in transitioning from the trial division to the Court of Appeal, and what you expect your biggest challenge will be in transitioning to the Supreme Court.
Madam Justice Andromache Karakatsanis: I'll start with my biggest challenge when I was first appointed a trial judge, and that was to keep quiet. I have an outgoing nature—I like to engage people and talk—so I think the hardest thing for me when I first became a trial judge was just to keep quiet. It's hard to listen if you're talking, and that was probably the first thing I learned as a judge.
In terms of challenges in going to the Court of Appeal, I think it's natural to miss the drama and the human experience that you get in a courtroom. That is something that I miss somewhat—but only somewhat. The job as an appellate court judge is just wonderful, because you get to work with other people. What I don't get in the drama in the courtroom, I have in the ability to talk with my colleagues and work with others. I have to say that's the aspect of the job that I have enjoyed the most.
Also, you get a chance to think about interesting and important legal issues and you don't have the pressure of having to make a ruling immediately. You get a chance to reflect.
(1840)
Mr. Bob Dechert: If I may, how important, in your view, was your experience as a member of the trial court to looking at similar cases in the appellate court?
Madam Justice Andromache Karakatsanis: Oh, for me it was very important. It was extremely helpful. When you look at an appeal of a trial, there's usually one issue. There's one particular ruling or one particular area that's singled out. When you understand the whole dynamics, when you've had the experience, it allows you to see it in context and be able to assess the relative importance of that one area in the context of the entire case. So I found it to be invaluable, for me personally, as an appellate court judge.
In terms of challenges—just quickly—I imagine one of the more interesting changes in dynamics for me, and, I would imagine, for all judges who first arrive at the Supreme Court of Canada, will be to have that collegial discussion among nine members instead of three. I imagine that will be quite a different dynamic, if I'm lucky enough to get there.
Mr. Bob Dechert: Okay.
Justice Moldaver.
Mr. Justice Michael J. Moldaver: I'll be very brief. There are some superstars, clearly, who have come directly from practise and who fit right in at the Court of Appeal. Speaking for myself, if you've never charged a jury, you're missing something. When you're called upon to review jury instructions, it's so helpful to have been there yourself to kind of understand.
I'll keep this very brief and say that the bottom line is that it gave me enormous respect for juries, for people from every common walk of life. I have huge respect for juries. I think we laden them with all kinds of complicated legal issues that.... They fully well understand without us getting into these complexities, and that's something that is of concern.
I have huge respect for twelve people from twelve different walks of life who can come together and bring 500 or 600 years of collective common sense and good judgment. I've been heard to say that I would take twelve people of that nature over a single trial judge any day of the week.
Mr. Bob Dechert: Very good.
Thank you.
The Acting Chair (Hon. Rob Nicholson): Thank you very much.
Mr. Cotler.
Hon. Irwin Cotler: Thank you, Mr. Chairman.
I have two questions, the first for Justice Moldaver and the second, if time permits, for Justice Karakatsanis.
My question to you, Justice Moldaver, has to do with the area of wrongful convictions. When I was justice minister and attorney general, I found that this was one of the most important areas of responsibility, to review applications for the review of wrongful convictions on the grounds of the likelihood of miscarriage of justice.
You've sat on some of the more important cases in that regard, one of them being one that I referred to your court—the Truscott case.
Steven Truscott, just for the public listening in, was convicted of murder in 1959. The conviction was upheld by the Ontario Court of Appeal, and the Supreme Court, at a rehearing in 1969, reaffirmed the conviction.
I grew up as a teenager with that case. I was a teenager when he was first convicted. As a law student, the only aspect I learned about Truscott in a footnote was the capital punishment thing. The issue of wrongful conviction never arose. Then, 45 years later, I was dealing with it as a minister of justice, and referred that case. I was also involved in the Phillion case.
My question to you, therefore, is what, from your experience, have you learned that can help us on matters relating to wrongful convictions? I'm referring to the importance of issues like eyewitness identification, voluntary and false confessions, the duty of disclosure, due diligence on behalf of defence counsel, etc.
You know what I mean; you've dealt with this perhaps more thoroughly than anyone I know, and that's why I'm putting the question to you.
(1845)
Mr. Justice Michael J. Moldaver: Well, thank you very much, Mr. Cotler. And I know exactly what you mean. There are certain what I call danger areas that we all have to be alert to. No one wants to see a wrongful conviction. We have to take all reasonable steps to avoid wrongful convictions. It's hard to think of anything worse in our society.
The Kaufman commission, for example, came out with some very important recommendations in terms of jailhouse informants and so on that have been very helpful to us. The Honourable Peter Cory, from the Sophonow inquiry, gave us some real insights into the dangers of eyewitness identification evidence and how we have to proceed with such care.
I know Justice Rosenberg has actually been heavily involved on behalf of the National Judicial Institute, going around the country training judges and talking to them about the various areas we need to be concerned about and the ones that are liable to give rise to a miscarriage of justice.
I'm going to stop in a moment, but I want to say this: I think the most important decision, probably in the history of our Charter, is the Stinchcombe decision, written by the late Honourable Justice John Sopinka. I think many of the miscarriages of justice in this country have been because there has not been full and complete disclosure. The Stinchcombe case obviously made it very clear that disclosure is vital, and if the defence has all the relevant matters, then the chances of there being a miscarriage of justice go down considerably. That was one of the problems, as you know, in the Truscott case.
Of course, it's easy to put today's head on yesterday's shoulders, and that really wasn't our purpose. But the Stinchcombe case on disclosure was absolutely vital.
I won't go on. I'm just saying there are certain areas we are very much alive to now—thanks to the work of various commissions, and thanks to the work of Justice Rosenberg—that we are alerting trial judges to on a daily basis. All we can do is the best we can. We must never forget, though, that it's still a human process, and regrettably mistakes will be made.
The Acting Chair (Hon. Rob Nicholson): We'll have to leave it at that, Mr. Cotler, if you don't mind.
Mr. Rathgeber.
Mr. Brent Rathgeber: Thank you, Mr. Chair.
Obviously you both have very impressive resumés, but they're very different resumés. To use your own words, Madam Justice Karakatsanis, you had a "somewhat unusual career as a lawyer"; I think those were your exact words.
I want to explore that a little bit. I'm curious to get your perspective as to how your very successful career as a public servant —starting, I believe, with the Liquor Control Board and then with the Attorney General's office, and ultimately being clerk to the Ontario cabinet—has helped you as a trial judge, as an appellate court judge, and specifically, getting back to what my friend Patrick Brown asked you about, the division between the legislature, the executive, and the judiciary.
Madam Justice Andromache Karakatsanis: Well, I think the first thing I realized when I was appointed a judge was that I was used to making decisions. I was used to having to study quickly as much material as I could get and reach decisions. I found on a very practical level that was a big help to me when I first started as a trial judge, and you had to make decisions very quickly. That took me a little bit by surprise, so that's the one aspect that I still remember quite vividly today.
I think having exposure to how the law works in many different ways has really been a gift for me. When you're in law school you don't necessarily see the law as an instrument of social policy. You don't really see that it impacts on every aspect of our lives. It's the law that governs relationships between people, and between government and people. I've had the real benefit I think, and certainly I've enjoyed it very much, of being able to see it from different perspectives that way.
So as an adjudicator with the Liquor Licence Board—it's the Liquor Licence Board, not the Liquor Control Board—I was involved in administrative law, which is very different—
(1850)
Mr. Brent Rathgeber: I'm from Alberta.
Madam Justice Andromache Karakatsanis: The administrative justice system is again more informal, quicker, with a bit more of a policy component.
With native affairs....I was involved in land claim negotiations, having oversight for that and seeing how aboriginal rights were important and had to be addressed.
As Deputy Attorney General, it was not only for oversight for the administration of justice in the courts, but also specific justice services—witness assistance programs and other justice services—as well as of course legal advice.
So it was really an opportunity to see the law and the impact of the law from so many different perspectives that I think I've been very fortunate in my career to have.
How has it helped me? I just think that by having a better understanding of how government works—how laws are made, the care that goes into reaching these important decisions that you make. I've seen first-hand how the public service gives full and really good, non-partisan, professional policy advice. I've seen the public service implement decisions of government, understanding that everybody has a role. Elected officials make the decisions. The public service gives the advice and then implements those decisions. For me, that has really reinforced the fact that everybody has an important role to play. We all have to carry out our own roles and respect the roles of the others.
The Acting Chair (Hon. Rob Nicholson): Thank you very much.
Madam Boivin.
[Translation]
Ms. Françoise Boivin: Thank you Mr. Minister.
Mr. Justice Moldaver, I'd like to go back to Mr. Comartin's question. According to what I've just understood, we aren't very well aware of the process, and neither are you. About seven months ago you started being considered by the federal government as a possible justice of the Supreme Court of Canada. Did I understand that correctly?
[English]
Mr. Justice Michael J. Moldaver: No, Madam, it was in July that I received the call.
Ms. Françoise Boivin: It was in July for the first time.
Mr. Justice Michael J. Moldaver: That was for the first time.
[Translation]
Ms. Françoise Boivin: So, for the very first time, you knew that you might conceivably be appointed to the Supreme Court of Canada.
Did you at that time make any efforts to start learning French, or did you simply wait for the confirmation of the governor in council?
[English]
Mr. Justice Michael J. Moldaver: No, I have not undertaken steps. That is the simple answer. I have not undertaken steps.
[Translation]
Ms. Françoise Boivin: My question is to Madam Justice Karakatsanis.
I'm going to be devilish and ask you whether, in your opinion, a person pleading before the Supreme Court of Canada has the right to be heard by justices that understand both French and English. In other words, do you believe that justices of the Supreme Court of Canada should be functionally bilingual?
Madam Justice Andromache Karakatsanis: Personally, I am happy to be able to understand oral arguments and to read documents in French. That is something I wanted to do, but it must be said that I had the opportunity of learning French in the Ontario public service. I did not start to learn French when I had become a judge, I started in university, I continued in the public service, and then I pursued my studies. Now I am very happy to be able to hear an appeal in French.
As to your question regarding language competency and whether it should be a requirement or not, it is not up to us as nominees to answer that, it is up to you. This is a political question and I cannot answer it. It is not my place.
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Ms. Françoise Boivin: That is a reply. It may not be "the" reply, but it is an answer.
In the case of Mr. Justice Moldaver, the lack of bilingualism was made public by the media—the type of question I am asking is thus not a surprise—whereas in your case, Madam Justice, your lack of experience at the appeal court level was raised. Indeed, that is quite recent.
What do you have to say to those who express that opinion in connection with your possible appointment to the Supreme Court of Canada?
Madam Justice Andromache Karakatsanis: I will start by saying that I was appointed to the bench nine years ago in November. I have only sat on the Appeal Court for 18 months. However, I must say that I find the work at the Appeal Court very rewarding and very interesting. I think that from the first day with my colleagues, I felt at ease at the Appeal Court.
However, there are nominees to the Court of Appeal who were never trial judges. Similarly, there are nominees to the Supreme Court of Canada who have not had experience as Appeal Court judges.
However, I must say that I feel deeply honoured to be here, and that I am going to do my best if I am appointed to the Supreme Court of Canada.
[English]
The Acting Chair (Hon. Rob Nicholson): Thank you very much.
Now I'll go to my colleague, Monsieur Goguen.
Mr. Robert Goguen: I'd like to canvass both your thoughts on the world of experts at the appellate level. I mean, the facts are all before you, obviously, and there's not supposed to be any new evidence being introduced, but more and more cases are of a very complex nature. Do experts have a role at the appellate level? What kind of procedure would you envision in using them to arrive at a comprehensive decision, faced with very technical types of decisions to be made?
Mr. Justice Michael J. Moldaver: It's a very important question. Is it designed to say that perhaps we should have experts sitting listening to the appeal or that we should be going out and getting expert evidence? I mean, our system is primarily based on the parties, of course, putting forward to the court.
Mr. Robert Goguen: I'm thinking more of the court marshalling the experts to come and assist in interpreting highly technical information. Of course, that can obviously be viewed as being somewhat unfair, but there has to be some sort of a role for experts. We can't be experts in everything obviously.
Mr. Justice Michael J. Moldaver: Clearly it's not proper for us to go outside the record. We can't start calling up experts, asking what does this mean or what does that mean. That would be highly improper. We could, I suppose, in a particular case, encourage the parties to perhaps try to file some fresh evidence before us if we're into a situation where the record at the lower level is not complete, and we could perhaps hopefully enhance the record in a way that would assist us.
Mr. Robert Goguen: That would be based on consent, of course. Mr. Justice Michael J. Moldaver: It would be based on consent, absolutely. But beyond that we're pretty much bound by the record we get, and hopefully there will be the kind of expert evidence that will assist us in writing our reasons.
What I have found, though, that's remarkable about this whole process is that somebody on the court knows something about everything. We all can't know everything about everything. At age 20, I thought I knew everything about everything. Today I realize every day how little I know about so much. But there are other people, and we talk and so on in collegiality and we work it through. We do the best we can.
Mr. Robert Goguen: Thank you.
The Acting Chair (Hon. Rob Nicholson): Thank you, Mr. Goguen.
Mr. Harris.
Mr. Jack Harris: Thank you, sir.
Madam Justice Karakatsanis, I have a question. I'll try to put it delicately, but it's in the public domain, so I'm repeating something that's already out there. I do note that your experience is a little different from that of others. You have a strong public law background, which I think is good. Your experience on the Court of Appeal is a year and a half, although I do note that of the 27 cases you sat on with your colleagues, you wrote 10 of the decisions. So the work ethic is clearly there.
Some of our legal confreres—and I'm not talking about partisan people but about law professors and some commentators—say they overlooked some big brains on the Court of Appeal for Ontario and that you've not got as much experience. Some may even go so far as to name the other people who are perhaps more qualified by their experience and whatnot, almost giving the sense that you're jumping the queue here somehow. I want to know, first of all, how that makes you feel as a person now going to the Supreme Court of Canada. And how do you respond to that in terms of what it is you bring to the table here?
(1900)
Madam Justice Andromache Karakatsanis: How does it make me feel? I have to say that I feel very humbled. As Justice Moldaver said, any one of our colleagues on the Ontario Court of Appeal would be fabulous in the position. So I feel very honoured and very humbled to be here.
In terms of my experience, it is somewhat different. I acknowledge that I have not been on the Court of Appeal for as long as I probably would like to be. It's a fabulous place to work, and the colleagues are, without exception, extraordinary people to work with.
I feel honoured to be here. I believe that I will do what I've done every time I've faced a new job, which is do the very best I can and work really hard. In those areas where I need to work harder, I will work harder.
I have to say that I feel that it has been an intense and rewarding experience on the Court of Appeal. As I said to Madam Boivin, sometimes people are appointed to the Court of Appeal who have not been trial judges. Sometimes people are appointed to the Supreme Court of Canada who have not been judges at all.
Mr. Jack Harris: I agree.
Madam Justice Andromache Karakatsanis: I am feeling quite honoured to be here.
Mr. Jack Harris: I think your answer to Mr. Rathgeber on your extensive public law experience and what that brings to the court is also extremely important. I thought your answer might be that it was equally important in many respects to have experience as clerk of the executive council and in government. That's a perspective that many judges do not have and that you do bring to the court.
Madam Justice Andromache Karakatsanis: Thank you for that. It's an excellent answer.
Voices: Oh, oh!
Mr. Jack Harris: I'm trying to help you out here.
Madam Justice Andromache Karakatsanis: Thank you. I should have said that myself.
The Acting Chair (Hon. Rob Nicholson): That's all we have time for on this one.
Mr. Brown.
Mr. Patrick Brown: Thank you.
We touched a little bit on property rights. What is your view of property rights in Canada and the protections that exist? Maybe Justice Karakatsanis can go first.
Madam Justice Andromache Karakatsanis: It's hard to answer questions like that in the abstract. I think every judge will tell you that we do best on a case-by-case basis.
Is there a particular issue that you're thinking about?
Mr. Patrick Brown: Do you believe we have adequate balance in terms of the protection of property and property rights in Canada?
Madam Justice Andromache Karakatsanis: I guess I'll just stay with my first answer and say that it's really hard. We have property rights, but when you talk about balancing them, I'm not sure in what respect.
Judges find it very hard to answer general, hypothetical questions. We're used to—
The Acting Chair (Hon. Rob Nicholson): It's whatever you're comfortable with, Your Honour. That is what we're here for.
Madam Justice Andromache Karakatsanis: Thank you.
The Acting Chair (Hon. Rob Nicholson): Are there any further comments or questions?
Mr. Patrick Brown: The other question is on the high cost of litigation. There are other things that have been introduced in the court system, like alternative dispute resolution. Do you have any comments, thoughts, or views on the high cost of litigation and mechanisms available that might enable us to reduce those costs?
(1905)
Mr. Justice Michael J. Moldaver: That's a very important and topical issue. It's been said before—I'm not the first to say it—that there are some who feel we have a justice system that only the very rich and the very poor can access. The middle class is largely shut out, because who can afford it? Who gets charged with a criminal offence and has to go to trial for 10 days or two weeks, is not legally aided, and has to pay the kinds of fees for the preparation and so on...? You would be virtually bankrupt if you had to finance that. You would probably lose your house and everything else.
Legal aid, obviously, is in stress most of the time. It's a vital part of ensuring people can access the courts and access justice.
One of the earlier questions was on my talk about the length and complexity and prolixity of trials, and so on, and not wanting people to abuse the system, not wanting people to use the Charter to obstruct and delay. Every time a judge does a case that could be done in two months, for example, and it takes four months, that's two months the courtroom is not able to be accessed by someone else. That's two months that a judge is out of commission. That is two months of legal aid funds that could be used for family law matters or for significant immigration issues and so on. We all have to work toward having an efficient and effective justice system, and a properly funded legal aid system that can try to cope with all the demands and various factions that are looking for what is probably a relatively small piece of the pie. There is a real concern that many Canadian citizens are feeling an inability to access our justice system. That is something we have to get at, and get at quickly.
The Acting Chair (Hon. Rob Nicholson): Thank you.
Mr. Sandhu, do you have questions?
Mr. Jasbir Sandhu: Thank you, Mr. Chair.
Mr. Justice Moldaver, you talked about having a lot of respect for the jury.
Mr. Justice Michael J. Moldaver: Yes.
Mr. Jasbir Sandhu: I want to talk about that a little. I have often heard, through media—TV and other sources—when the judge is giving instructions to the jury, it is often very technical, long, and tedious.
Mr. Justice Michael J. Moldaver: Tell me about it.
Mr. Jasbir Sandhu: Would you care to elaborate on that?
Mr. Justice Michael J. Moldaver: It has been said for years and years that 90% of what we tell juries is for the Court of Appeal and 10% is for the jury. I have heard that for years, ever since I have been a judge. Nothing seems to change.
I'm going to speak very briefly to that. We have to make every effort to try to come to grips with the fact that we are dealing with twelve people from twelve different walks of life who didn't just arrive here yesterday. We should be looking to try to streamline our instructions to the jury with that in mind, to try to remove some of the complexities that exist. As trial judges, when you are in full flight in the middle of trying to explain the co-conspirator exception to the hearsay rule to a jury, we see their eyes glazing over, and you are falling asleep giving the instructions. When I was charging on selfdefence sometimes, it was so complicated I would thank the jury for coming back after a recess—I had finished 34(1), they would come back, and we would start in on 34(2).
There are things that can be done and, in my respectful view, should be done.
Mr. Jasbir Sandhu: Justice Moldaver, I am not a lawyer myself, but I'm going to use a legal term here. What is the remedy for that? How do we fix that? You talked about it generally, but what are some of the things we can do?
(1910)
Mr. Justice Michael J. Moldaver: We have to put our best legal minds together. Perhaps we have to get parliamentarians into the business of the game too, shall we say. All the stakeholders have to come together and work constructively with a common goal. I think we can do it. I'm sure we can do it. You have to get everybody onside, and/or you have to have the judges start to take the bull by the horns, so to speak, and lead the way, and through our judgments try to make it clear that these kinds of long-winded, complex charges are no longer acceptable. We should be paring them down and giving the jury just what they need and no more.
Mr. Jasbir Sandhu: I have a question for Madam Justice.
You talk about Canada being a diverse nation. I am an immigrant myself. I came to this wonderful country 31 years ago, and I cannot say thank you enough for the opportunity that this land has given me.
You come from a diverse background yourself, having learned a number of languages, and you grew up in a large family. How is that diverse background of yours going to help you to do a better job? How will you use that experience?
Madam Justice Andromache Karakatsanis: I'll start with what I said in my opening statement. I think my immigrant heritage has helped me to be a little more sensitive to different cultures, to understand diversity a little bit more and the challenges that immigrants face. It fosters empathy, an understanding that people come from different places and have different views and perspectives. It's another way of having an open mind, really. It is so much a part of who I am that it's hard to say exactly how it's going to help me. It's really just about respect, respecting people for their differences as well as celebrating what we have in common.
The Acting Chair (Hon. Rob Nicholson): Thank you.
Mr. Woodworth.
Mr. Stephen Woodworth: Thank you, Mr. Chair.
Justices, the professor at the beginning outlined for us why we can't ask you questions about your past decisions. We can't put you in a box by trying to ask you what you might do in relation to any future issue, and yet it is for us on behalf of Canadians to take your measure in some way without those opportunities. It has always seemed to me that one way to take the measure of a person is to understand the ideals that person aspires to.
So I would like to ask each of you what you consider to be the most important qualities of an ideal Supreme Court justice, keeping in mind the unique responsibilities of that position.
Since I started last time with Justice Karakatsanis, I'll start this time with you, Justice Moldaver.
Mr. Justice Michael J. Moldaver: I thank you very much, and that's an excellent question.
Again, I come back to humility, understanding what we're all about. I'm not a fancy person. I don't pretend to be a constitutional scholar. I don't pretend to be a scholar in any area of the law. Criminal law is an area that I've lived with for many, many years, but I still have to learn every day and do learn every day. So I think humility is important, and when I say humility, what I'm really saying is that we should take the job seriously without taking ourselves too seriously. We are all cogs in a very big wheel. You've heard the expression "judge-itis" before. That is something that I have no time for. Quite frankly, if you want to know how important you are—I tell this to new judges—walk outside Osgoode Hall onto Queen Street and try to butt into the line-up at the chip truck at noon hour and you'll see how important you are.
And if you want to think how handsome you are or how beautiful or how funny you are and so on, because all these things happen when you become a judge—your jokes are very funny and you're beautiful and so on—just ask your 14-year-old daughter. She'll tell you.
(1915)
Madam Justice Andromache Karakatsanis: That's too close to home.
Mr. Justice Michael J. Moldaver: The bottom line is that we're all human, and if we have an understanding of the human condition and an empathy for the human condition, and if we respect the basic values that make Canada such a wonderful country, that's what goes into the making of a good judge, in my view.
Mr. Stephen Woodworth: Justice Karakatsanis, you have a hard act to follow, I might say.
Madam Justice Andromache Karakatsanis: It is. It's hard to top that.
I concur.
The Acting Chair (Hon. Rob Nicholson): Thank you. We'll have a unanimous decision on that.
Professor Hogg, any comments?
Prof. Peter Hogg: No, I don't want to add to the discussion. I just want to thank everybody today for their courteous, moderate, and civil approach to this. I think it has been a credit to everybody, with great respect, and I was glad I wasn't the candidate myself. It's not an easy job, but the two candidates did a wonderful job.
The Acting Chair (Hon. Rob Nicholson): Colleagues, let me thank all of you around this table and all those who helped put this together.
Professor Hogg, thank you for being a part of this.
To the two nominees, thank you very much for opening up about yourself and your vision of this. I think you're going to be a great part of the fabric of this country. You said you and your families are so proud of your being here. I can tell you all of us are very proud.
Thank you very much.
The meeting is adjourned.
- Date Modified:
