Op-Ed: The Emergence of Justice Andromache Karakatsanis

As Justice Morris Fish announced his retirement from the Supreme Court of Canada effective August 2013 and Justice Louis LeBel will be forced to retire before the 2015 election, if there are no other resignations, Prime Minster Harper will have appointed seven justices in the panel of nine before the end of his term. There have been musings about how the number of justices PM Harper has appointed will affect the development of Canadian Law, but the spotlight has most recently been shone on one particular appointee. In a scathing editorial in April 2013, the Globe and Mail noted that Justice Andromache Karakatsanis had written notably fewer decisions than her colleagues at the time. In fact, the article described the recently appointed judge as being “a long way from pulling her judicial weight.” While harsh, the editorial is partly based on the fact that Justice Karakatsanis was only the author of four decisions in 2012, while Justice Michael Moldaver, who was appointed at the same time, authored eleven. However, Justice Karakatsanis may now have cause to silence those critics as she penned four decisions released by the top Court at the end of July and the beginning of August.

There are multiple factors to consider when appointing a new Supreme Court justice, and while the  Court is a non-partisan body, it is likely that a judge’s judicial history is a factor in this decision. Additionally, much has been written about the current government’s performance, and its particular brand of Conservatism. Breaking it down quite simply, this article in Maclean’s Magazine illustrates how Prime Minister Harper’s Conservatives (big C), are unmistakably conservative (small c). Personally, reading decisions from new Supreme Court judges is intriguing, as I like to deconstruct and analyze that particular judge’s style. In this article, I argue that the decisions in Ontario v Criminal Lawyers’ Association of Ontario 2013 SCC 43 [Criminal Lawyers] and Marine Services International Ltd. v Ryan Estate 2013 SCC 44 [Ryan Estate] written by Justice Karakatsanis not only give readers a glimpse into her style and developing voice on the bench, but also show how she is unmistakably a Harper appointed Supreme Court justice. To be clear, I by no means argue that the bench has been politicized in any way, but rather, I wish analyze both decisions in an effort to infer how this particular Supreme Court justice applies the law.

In Criminal Lawyers, the Court had to determine whether Superior Courts and Provincial Courts had the inherent or implied jurisdiction respectively to not only appoint amici curiae, but also make decisions regarding their rates of pay. Most simply, an amicus curiae is a lawyer appointed by the court to assist in its proceedings. Traditionally, they are meant to serve the court, but this case arises out of several criminal trials in which defendants dismissed the lawyers assigned to them. In these cases, the judges appointed an amicus acting as defence council, and after a dispute about compensation, they also decided on their rate of pay. Writing for the majority, Justice Karakatsanis makes a poignant effort throughout the decision to distinguish between the role of the judiciary and the role of the legislative branch of government. She emphasizes, at several points, that the preservation of these roles is paramount in ensuring that each operates successfully. For instance, at paragraph twenty nine of the decision, she writes that, “all three branches have distinct institutional capacities and play critical and complementary roles in our constitutional democracy. However, each branch will be unable to fulfill its role if it is unduly interfered with by the others.” Additionally, at paragraph eighty three, Justice Karakatsanis makes a strong statement when she writes:

“[I]n our system of parliamentary democracy, an inherent and inalienable right to fix a trial participant’s compensation oversteps the responsibilities of the judiciary and blurs the roles and public accountability of the three separate branches of government. In my view, such a state of affairs would imperil the judicial process; judicial orders fixing the expenditures of public funds put public confidence in the judiciary at risk.”

These concerns are very similar to the ones many Tories have about the interference of courts into the role of the legislature. All in all, Justice Karakatsanis rules that while courts may appoint amici to assist in carrying out its affairs, only the Attorney General may set their rates of pay.

Secondly, in Ryan Estate, two brothers passed away after their fishing ship sank near the coast of Newfoundland and Labrador. While their families successfully obtained compensation via the province’s Workplace Health, Safety and Compensation Act (WHSCA), they also commenced an action in tort law. In short, the legal issue in this case is whether these actions under s.6(2) of the Marine Liability Act (MLA) are statute barred under s.44 of the WHSCA. Two constitutional issues arise in this case. First, is the WHSCA inapplicable by virtue of the doctrine of interjurisdictional immunity? Second, does the WHSCA conflict with the MLA, thus making it inoperable due to the doctrine of federal paramountcy? In respect to the first issue, citing the two part test in Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39 (“COPA”), Justice Karakatsanis writing for a unanimous Court rules that while the WHSCA may touch on a responsibly delegated to the federal government, the second part is not met as the intrusion is not “significant or serious.” Another way the law could have been nullified is if the Court found that both laws conflict, due to the doctrine of federal paramountcy. Here, Justice Karakatsanis notes that there are two types of conflict. If it is impossible to comply with both the federal and provincial law, or if the provincial legislation “frustrates” the purpose of the federal legislation, federal paramountcy is engaged. However, after looking at all the facts in this case the Court rules that there is no conflict between the WHSCA and MLA. All in all, the action commenced by the brothers’ families is found to be statue barred by s.44 of the WHSCA.

This decision provides a comprehensive overview of how both interjurisdictional immunity and federal paramountcy have evolved. The judicial history of this case is very interesting to note, as both the trial judge and the Court of Appeal for Newfoundland and Labrador ruled that s.44 of WHSCA was both inapplicable and inoperable. In my view, this decision written by Justice Karakatsanis shows deference to both the provincial and federal legislatures and recognizes that they should be permitted to legislate within their respective spheres. It is this approach to federalism that has been associated with today’s government. For instance, the Harper government has been noted for not being interventionist in both the education and health portfolios, rather wishing to provide funds to the provinces so they may use their expertise in these fields.

To conclude, while critics have been harsh on this new Supreme Court of Canada judge, Justice Karakatsanis is quickly finding her voice on the bench. It might be presumptive to make a statement about a particular justice’s style based on just two recent decisions, but it will be most intriguing to see how Justice Karakatsanis and her fellow colleagues each make their mark on Canadian law.