Behind the numbers of the two new Supreme Court of Canada appointees 

publication 

November 2011

Litigation Bulletin

In October 2011, two Ontario Court of Appeal judges, Justice Michael Moldaver and Justice Andromache Karakatsanis, were appointed to the Supreme Court of Canada. This immediately resulted in a flurry of speculation as to how their perceived personalities would impact the direction of the Supreme Court. How does their recent judicial history on the Court of Appeal fit in with the public storylines that have emerged since their appointments?

In order to answer this question, we can look to the cases reported publicly by the Ontario Court of Appeal over the past few years. As the Court of Appeal publishes the decisions reached in most of the appeals that it hears, we can look at these decisions to create a rough snapshot of the judicial tendencies of Justice Moldaver and Karakatsanis. For the purposes of this article, 2,106 Court of Appeal decisions between January 1, 2009 and October 31, 2011 have been compiled, and analyzed based on (a) whether the appellant had some degree of success on appeal1, (b) whether the case was a criminal case2, and (c) whether the decision in the case was reserved3, and if so, for how long.

level of criminal expertise

A common narrative regarding these Supreme Court appointments is that Justice Moldaver was chosen for his expertise in criminal law, in order to replace the criminal experience of the departing Justice Louise Charron.4 If true, this should be reflected in how often the Court of Appeal assigns Justice Moldaver to hear criminal appeals. While judges on the Court of Appeal are expected to hear appeals in a wide range of areas of law, history indicates that judges with areas of special knowledge will be more frequently assigned to hear those types of appeals. As a result, if the Court of Appeal held the internal view that Justice Moldaver had more criminal expertise than non-criminal expertise, it would be more likely to assign him to criminal appeals.

In fact, from January 1, 2009 to October 31, 2011, only two other Court of Appeal judges heard a higher proportion of criminal appeals than Justice Moldaver. Looking at the Court as a whole, approximately 44% of the published decisions were criminal decisions. Justice Moldaver's own percentage was roughly 53%, trailing only Justices Doherty and Watt, who are themselves highly regarded criminal law jurists.

In comparison, Justice Karakatsanis, who had a background primarily (although not exclusively) in administrative law prior to being appointed as a judge, had one of the lowest percentages of criminal cases. During her tenure at the Court of Appeal, less than 35% of the published cases she was involved in were criminal appeals in nature. Only two other judges heard proportionally fewer criminal cases during this time period (Justices Winkler and Juriansz).

decision making tendencies

Given the Conservative government's reported "ambitious law and order agenda", commentators have speculated that the selection of Justices Moldaver and Karakatsanis is intended to result in a more right-leaning orientation of the Supreme Court of Canada.5 Although there are significant differences between the cases a judge hears on the Court of Appeal versus the Supreme Court of Canada, the judicial tendencies of the decisions of these judges at the Court of Appeal may give a slight indication as to how they may rule on the Supreme Court of Canada.

Justice Moldaver has been reported as having clashed with the criminal defence bar.6 This has given rise to a reputation as a "law and order" type jurist, who is less sympathetic to arguments from defence lawyers.

Taking a broad view of the matter, with the qualification that each case heard by the court is unique and not necessarily statistically predictive of future cases, the common view of Justice Moldaver has some support in the numbers. In the criminal decisions reviewed for this article, the court sided with the Crown approximately 73% of the time.7 There was relatively little variation from this average, as most judges fell within a few percentage points of 73%. Decisions which involved Justice Moldaver sided with the Crown approximately 79% of the time, which, while relatively close to the average, was the fifth highest percentage of all Ontario Court of Appeal judges.

Justice Karakatsanis, on the other hand, was involved in decisions going against the Crown on a more frequent basis. Justice Karakatsanis' cases went in favour of the Crown 63% of the time, compared to the Court's average of 73%. Given the more recent appointment of Justice Karakatsanis, and the smaller sampling of cases which she has been involved in, this number is less statistically significant than it is for most other judges.

While Justices Moldaver and Karakatsanis are on opposite sides of the statistical spectrum with respect to criminal appeals, they have much more in common when it comes to civil appeals. For civil cases heard by the Court in general, appeals were allowed (at least in part) approximately 24% of the time. Both Justices Moldaver and Karakatsanis were among the least likely to be part of a decision allowing a civil appeal, with 16% and 17% rates, respectively. This placed them as the judges who were 2nd and 3rd least likely to allow a civil appeal of all judges on the Court of Appeal for this period.

relative delays in rendering decisions

A common complaint of the modern Supreme Court of Canada is the length of time it takes the Court to release a decision following a hearing. As both Justice Moldaver and Karakatsanis tend toward releasing decisions quicker than the Court average, they may be helpful in improving the speed at which the Supreme Court releases its decisions.

There are two elements which were measured to assess the decision making speed of judges. The first is the percentage of cases that were reserved. On average, the Court reserved its decision in 47% of the cases reviewed from January 1, 2009 to October 31, 2011.8 The second is a calculation of how long, on average, it took for a decision under reserve to be released. The average for the Court of Appeal was 74 days.

Compared to the average Court of Appeal numbers, both Justices Moldaver and Karakatsanis were on panels that were able to decide issues quicker than average, albeit in different ways. Justice Moldaver was the least likely judge to be on a panel that took a decision under reserve, as only 34% of decisions involving him were taken under reserve. Once a decision was reserved, the average length of time before a decision involving him was released was near the Court's average (71 days for panels involving Justice Moldaver versus 74 days for the Court as a whole).

In contrast, while Justice Karakatsanis was more likely to be a part of a reserved decision, those decisions that were taken under reserve were released sooner. Decisions involving her were reserved 53% of the time, slightly more than the Court's average.9 When a decision involving Justice Karakatsanis is reserved, however, it is released more quickly than average (45 days). This may be influenced, in part, by her being freshly appointed to the court, and not having the pre-existing backlog of cases the other judges might have.

conclusion

While this article does not speak to the most important qualification of a Supreme Court appointee – the quality of the decisions that they reach – it should hopefully provide some additional insight into the recent history of these judges. Understanding what Justices Moldaver and Karakatsanis have done in the past may help us predict what they will do in the future. That being said, the inherent unpredictability of people, combined with the differences between the dynamics on the Court of Appeal and the Supreme Court of Canada, suggests that it will be a long time before we know how these appointments will actually turn out.

by Mark Wiffen

1 Success on an appeal is not always clear cut. In many cases an appellant will lose on some issues and win on others. For the purposes of this analysis, success has been defined as whether the appellant appears to have been successful in persuading the judges hearing the appeal to improve his or her ultimate result in some not insubstantial way. Cases where the change in result was insubstantial, or where it was not opposed by the other party are not considered a success.

2 Including cases reviewing decisions of the Ontario Review Board, which is a tribunal that typically considers issues involving individuals found "not criminally responsible on account of mental disorder".

3 A case taken under "reserve" is where the judges do not immediately release a decision. For the purposes of this analysis, a case is considered to have not been taken under reserve if the decision is either released orally, or is made by way of an "Appeal Book Endorsement".

4 Meagan Fitzpatrick, "Supreme Court judge nominees named by Harper" CBC News (17 October 2011).

5 Kirk Makin, "PM taps Ontario judges Karakatsanis, Moldaver for Supreme Court ," The Globe and Mail (17 October 2011).

6 "Moldaver a Force to be Reckoned with," thestar.com (17 October 2011).

7 Either by allowing a crown appeal, at least in part, or denying a defendant's appeal.

8 The actual reserve percentage of the Court of Appeal will be marginally lower, as any unpublished decisions will typically be ones where the Court did not reserve their decision (i.e. "inmate appeals", involving self represented inmate's, where a decision is released orally but not published)

9 The average for decisions heard after March 26, 2010 is lower than the average since January 1, 2009 since it will include a higher percentage of cases that have been heard, but not yet decided.    

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2011