Judicial Biography: Justice Andromache Karakatsanis
Post 4/9 in TheCourt.ca’s Judicial Biography Series (Fall 2019)
Justice Andromache Karakatsanis is the Supreme Court of Canada’s (“the Court” or “SCC”) fourth most senior justice and one of four female judges on the SCC. Her Honour was appointed by former Prime Minister Stephen Harper in October 2011 after a landmark career in the public sector, which culminated in an appointment as Ontario’s top civil servant.
This post describes Justice Karakatsanis’s pathway to the bench. It also offers a brief analysis of Her Honour’s writing style and contributions to Supreme Court jurisprudence. Finally, it analyzes two notable decisions authored by Justice Karakatsanis in summer 2019, R v Goldfinch, 2019 SCC 38 [Goldfinch] and R v R(V), 2019 SCC 41 [R(V)]. Both cases made significant changes to the law of admissibility around a complainant’s prior sexual history evidence in sexual assault trials.
Early Life and Education
Andromache Karakatsanis was born in Toronto on October 3, 1955. The daughter of first-generation Greek immigrants, Justice Karakatsanis had her first job waitressing in her family’s Greek restaurant, Top of the Mall. She is fluent in English, French and Greek.
Justice Karakatsanis has described herself as a “studious” young person who played the piano and pursued the arts rather than run with the “popular crowd.” She completed a BA in English Literature from the University of Toronto and an LLB at Osgoode Hall Law School, where she received, among other awards, the Harry R. Rose Criminal Law Prize. Her Honour also did a rotation at Parkdale Community Legal Services and said “Parkdale was one of the most interesting and satisfying experiences of my legal education.” After law school, Justice Karakatsanis completed her articles under the late Mr. B. Clive Bynoe, Q.C. She clerked at the Court of Appeal for Ontario (ONCA) from 1982-1983 and then entered private practice in Toronto.
Justice Karakatsanis the Lawyer
In the private sector, Justice Karakatsanis litigated both civil and criminal cases and became a named partner at the law firm Sotos, Karvanis, Karakatsanis. After four years in private practice, from 1983-1987, Her Honour pivoted to the public service.
As a public servant, Justice Karakatsanis held a series of positions of increasing importance, leading the Lawyer’s Daily to describe her as a “versatile former top Ontario public servant.” Justice Karakatsanis began her career in government serving as the Vice-Chair and then Chair and Chief Executive Officer (CEO) of the Liquor License Board of Ontario (LLBO). She remained at the LLBO from 1987 to 1995, at which point she became Assistant Deputy Attorney General and Secretary of the Ontario Native Affairs Secretariat. Between 1997 and 2000, Her Honour served as Deputy Attorney General of Ontario. In this role, Justice Karakatsanis was responsible for overseeing court administration in Ontario and spearheading governmental justice initiatives.
In June 2000, Her Honour became Ontario’s top civil servant when she was appointed Secretary to the Cabinet and Clerk of the Executive Council of Ontario. Justice Karakatsanis was the second woman to fill the Secretary position, and remains one of only three women to have held the role since it was established in 1948.
In addition to her work in government, Justice Karakatsanis was an active volunteer during her time as a lawyer. She volunteered extensively with the YMCA between 1990 and 2002 and chaired the Board of Directors. While working in the public service, she was actively involved in education and administrative justice reform. In 1996, she received the Society of Ontario Adjudicators and Regulators (SOAR) Medal for outstanding service to Ontario’s administrative justice system.
In November 2002, Justice Karakatsanis was appointed to the Ontario Superior Court of Justice. After eight years as a trial judge, Her Honour was appointed to the ONCA in March 2010. Shortly thereafter, she was elevated to the Supreme Court by former Prime Minister Stephen Harper in October 2011. Her appointment and the appointment of Justice Michael Moldaver filled vacancies left by former Justices Ian Binnie and Louise Charron.
Justice Karakatsanis on the Supreme Court
During her tenure on the Court, Justice Karakatsanis has built a reputation for plain-language writing and clear-eyed legal analysis. Her Honour’s writing style tends toward being straightforward in tone, and avoids long block quotes and unnecessary jargon and acronyms. This style, which has come into its own in the past five years, seems to dovetail well with Chief Justice Wagner’s initiative to improve access to justice at the Court by, among other things, writing using legal language that is accessible to the parties.
In terms of decision-making style, recent figures suggest that Justice Karakatsanis tends toward joining or authoring majority decisions rather than dissenting. Her Honour has contributed several landmark decisions to the Court’s jurisprudence, but she has also authored numerous potent dissents. Her Honour’s most-cited decision is the civil procedure blockbluster Hyrniak v Maudlin,2014 SCC 7, which clarified the purpose and availability of summary judgment. In 2016, Her Honour co-authored the majority decision in R v Jordan, 2016 SCC 27 along with Justices Moldaver and Brown, a case that remade Canadian criminal procedure and Charter section 11(b) jurisprudence by setting firm caps on the right to be tried within a reasonable time.
In terms of non-majority decisions, Justice Karakatsanis’s judgments in R v Fearon, 2014 SCC 77 [Fearon] and the dissent in Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 [Mikisew Cree], both stand out in her jurisprudence. In Fearon (TheCourt.ca’s coverage here), Justice Karakatsanis wrote for a three-judge minority and found that there is a heightened privacy interest at stake in the context of warrantless searches of arrestees’ cell phones, because digital tools store such vast quantities of our personal information. In Mikisew Cree (TheCourt.ca’s coverage here), another case featuring a heavily divided Court, Justice Karakatsanis (Chief Justice Wagner and Justice Gascon concurring) held that the duty to consult First Nations groups did not extend to legislative action taken by the Canadian government, but that the honour of the Crown nevertheless required the executive and Parliament to act honourably toward the Mikisew.
Overview of Major Decisions: R v Goldfinch and R v R(V)
In keeping with her tendency to contribute impactful decisions on the Court, Justice Karakatsanis recently penned two of the three decisions in a trilogy that altered the law of evidence admissibility in sexual assault trials. R v Barton, 2019 SCC 33 [Barton], R v Goldfinch and R v R(V) updated the rules surrounding admissibility of a complainant’s prior sexual history in the sexual assault trial context. Justice Karakatsanis authored the majority opinion in Goldfinch and R(V) (she dissented in part, alongside Justice Abella, in Barton).
Goldfinch: The Law of Friends with Benefits
The question at issue in Goldfinch was whether evidence of prior sexual history between a complainant and the accused is admissible under Criminal Code s. 276 to establish “context” or “narrative” about the relationship. Contextual information about Goldfinch is available in Julia Kalinina’s appellate primer.
Goldfinch and the complainant had been in a sexual relationship prior to the night of the alleged assault. In the weeks preceding the assault, Goldfinch and the complainant stopped seeing each other regularly, but they still had sex occasionally and the complainant sometimes slept over at Goldfinch’s house. On a voir dire, Goldfinch sought to introduce evidence of the complainant’s prior sexual history with him, i.e. the fact that they had previously been sexual partners and that they still sometimes hooked up. In the accused’s view, this contextual information was necessary to avoid giving the jury the misleading impression that their relationship had been “platonic” on the night of the assault. According to the accused, the information was vital to his ability to make full answer and defence.
The Crown argued that admitting prior sexual history evidence for a contextual purpose would contravene Criminal Code s. 276, otherwise known as the rape shield provisions. Per s. 276, evidence of a complainant’s prior sexual history is admissible only if it is, among other things, “relevant to an issue at trial.” Relevance may be established if, for example, the evidence supports an available defence or if it rebuts a prior inconsistent statement. Baked into s. 276 is a broad scope of discretion for trial judges to determine the admissibility of prior sexual history evidence on a case-by-case basis. In certain cases, trial judges have considered prior sexual history evidence admissible for a contextual purpose as the sole ground of relevance. The validity of this interpretation of s. 276 was the core of the issue in Goldfinch.
At trial, the trial judge admitted the evidence, and accepted the accused’s submission that establishing context for the relationship was necessary to make full answer and defence. On appeal, the Court of Appeal for Alberta (ABCA) disagreed, finding that the evidence had been admitted exclusively for the purpose of propping up one of the twin myths, namely the notion that because the complainant had consented to sex with the accused in the past, she was more likely to have consented to sex during the night in question. The case reached the Supreme Court by right as a result of a dissent by Berger JA, who agreed with the trial judge that the evidence was relevant because it was necessary to avoid misleading the jury into thinking the relationship between the accused and the complainant had become platonic.
At the Supreme Court
At the SCC, Justice Karakatsanis for the majority held that admitting the evidence was a reversible error of law. The majority dismissed the appeal, and Goldfinch’s conviction stood. The majority began by characterizing the relationship between the complainant and the accused during the time of the assault as “friends with benefits” (Goldfinch, para 3), which was later cited to Alanis Morrisette’s 1995 hit “Head Over Feet” – surely a first for any Canadian appellate court ruling (para. 149). The majority went on to hold that the contextual evidence – the fact that Goldfinch and the complainant had been friends with benefits – was inadmissible because it was irrelevant to an issue at trial (for example, it did not go to Goldfinch’s defence). To the contrary, the majority agreed with the ABCA that the evidence encouraged the trier of fact to make a prohibited inference that the complainant was more likely to have consented during the night of the assault because she had consented to sex with Goldfinch in the past (Goldfinch, paras 47, 60). This type of thinking is classic twin-myths-based reasoning and constitutes a reversible error of law.
Justice Karakatsanis clarified that under other circumstances, sexual history evidence for the purpose of establishing context may genuinely be relevant to an issue at trial. For example, such evidence may be relevant if it is “fundamental to the coherence of an accused’s narrative, and by extension, credibility” (Goldfinch, para 65). However, in Goldfinch, “there was nothing about the accused’s testimony that cast him in an unfavourable light or rendered his narrative untenable absent the information” (Goldfinch, para 68). The majority reiterated that s. 276 requires the accused to identify why evidence is relevant beyond an inference supported by the twin myths, and held that mere “generic references to … narrative or context will not suffice” (Goldfinch, para 56).
Speaking broadly, s. 276 is designed to balance the rights of sexual assault complainants to privacy and dignity with the right of the accused to make full answer and defence (Goldfinch, para 81). Goldfinch stands for the proposition that highly prejudicial evidence cannot be snuck in through the back door in the absence of a hook to a relevant issue at trial. In making a categorical finding that the friends with benefits evidence was inadmissible in Goldfinch because it invited twin myths-based reasoning, Justice Karakatsanis came down squarely on the side of protecting a complainant’s privacy rights around sexual history evidence (and earned the praise of feminist legal advocacy groups in the process). The majority decision is a firm reminder that twin myths-based reasoning is to be avoided, and that sexual history evidence cannot be used to discredit the complainant absent a valid legal purpose.
R v R(V): Reconsidering Complainants’ Privacy Interests
While Goldfinch featured a defendant who wanted to introduce evidence of the complainant’s prior sexual history, R(V) featured Crown counsel who wanted to let the sexual history evidence in. In R(V), the prosecution sought to introduce evidence about a complainant’s pregnancy to support its case against the accused. The accused responded by seeking the right to cross-examine the complainant on that information.
The complainant in R(V) was a 15-year-old who claimed that her 20-year-old cousin had sexually assaulted her while on a camping trip. Shortly after the camping trip, the complainant discovered she was pregnant. The complainant decided to end the pregnancy, meaning no DNA evidence of paternity was available. The Crown alleged, and the complainant testified, that the complainant had never had sex prior to the camping trip. The Crown indicated that it intended to use information about the complainant’s virginity and pregnancy as evidence that she had been sexually assaulted by the accused. The accused sought to cross-examine the complainant on her prior sexual history, arguing that she had had other sex partners who could have been responsible for the pregnancy. The question at issue was framed by the SCC like so: “Is it clear that R(V) was able to adequately challenge the inference that the pregnancy confirmed his participation in the assault?” (R(V), para. 87).
At trial, the accused brought an application under s. 276 to cross-examine the complainant on her evidence, which the first trial judge declined. A second trial judge then replaced the first judge and refused the accused’s request to have his s. 276 application relitigated. At trial, R(V) was found guilty of sexual interference and received a four-year sentence. On appeal, the Court of Appeal for Ontario (ONCA) allowed the appeal and ordered a new trial. The ONCA held that it had been “patently unfair” for the Crown to seek to rely on evidence of the complainant’s pregnancy as confirmation of the complainant’s story without giving the accused the chance to challenge that inference.
At the Supreme Court
At the Supreme Court, Justice Karakatsanis writing for a five-judge majority (Justices Brown and Rowe dissenting) overturned the ONCA, allowed the appeal and restored the conviction of sexual interference against R(V). That said, in R(V) the result and the analytical path veer in different directions, and the outcome should not be mistaken for the holding of the case. The Court found that R(V) should have been entitled to examine the complainant at trial on particular aspects of her sexual history, because the veracity of the complainant’s evidence that she was a virgin went to his ability to make full answer and defence (R(V), para. 88). Yet the Court also found that in this particular case, the cross-examination that did occur was rigorous enough to reveal any inconsistencies in the complainant’s testimony. The complainant gave credible evidence about her virginity and pregnancy at trial and nothing in the record suggested that she was lying. Ultimately, the accused would still have been found guilty even had he been able to cross-examine the complainant on this aspect of her sexual history (R(V), paras. 90, 96).
In R(V), Justice Karakatsanis emphasized that s. 276 is designed to protect complainants’ privacy and dignity wherever possible. At the same time, those commitments must be balanced against the accused’s right to make full answer and defence (R(V),para. 7). Justice Karakatsanis pointed out that the presumption of innocence means the accused is entitled to answer the charges against him, and given the absence of other evidence of paternity, the accused in this case was entitled to cross-examine the complainant on the evidence about her virginity (R(V), para. 7). Justice Karakatsanis noted that the cross-examination would have had to be limited to protect the young complainant’s dignity and privacy (R(V),para. 8).
Together, Justice Karakatsanis’s decisions in Goldfinch and R(V) show a seasoned justice wrestling adeptly with complicated commitments in the criminal law. These decisions are sure to become core to her criminal law jurisprudence, and to the law of prior sexual history evidence as a whole.
 The relevance requirement exists as the result of famous amendments to s. 276 in the 1980s, which were designed to steer evidence law away from trial practices that discriminated against complainants in the sexual assault context. One of the key amendments tightened the parameters of admissibility around a complainant’s prior sexual history. This amendment was meant to improve privacy protections for female sexual assault complainants around their sexual histories, which the law has held to be largely irrelevant to the issue of consent (i.e. of limited probative value and highly prejudicial effect).