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Carving out a profile

Cover Story
|Written By Shannon Kari
Carving out a profile

On a cold February morning in Ottawa, the sidewalks and grounds in front of the Supreme Court of Canada building are almost empty. A single person is directing pedestrians who do walk by, to stop temporarily. Not for security reasons, but so a colleague can shovel snow and ice off the roof of a government building next door. That very Canadian inconvenience is one of the only signs of activity outside the courthouse. Inside the building, it is also relatively quiet, as the court was not sitting. The judges are working at crafting upcoming decisions and preparing to interview applicants the following week for coveted law clerk positions.

The relative calm of the morning is a break in what has been a very busy and sometimes controversial past few years at the Supreme Court. During that period, the court has struck down some of the federal government’s crime legislation and ruled against its attempt to unilaterally amend the terms of senators. It quashed some of the country’s prostitution laws, struck down the ban on assisted suicide, ruled that Marc Nadon was not eligible to be appointed to its bench, and concluded there is a constitutional right to strike.

Sitting with her colleagues in all of those cases was Justice Andromache Karakatsanis, who has already carved out a profile at the court in the three-and-half-years since she was elevated from the Ontario Court of Appeal. In addition to her role in the majority decisions that received the most media attention, she has been the author of a number of major rulings that will impact the legal community and the administration of justice. They include decisions designed to streamline civil litigation, protect the privacy rights of sexual assault victims, and remove a potential obstacle for individuals who are suing police over alleged misconduct. She has not hesitated to write strong dissents in areas as diverse as competition law to warning against allowing the state broad powers that might infringe the privacy rights of people under police investigation.

Fighting a cold on that winter morning, Karakatsanis is still gracious and welcoming inside her Supreme Court office, with its traditional large wooden desk and view of the Ottawa River. From former colleagues to security staff at the court, there is a consistent reference to her warmth of personality.

In one of the only interviews she has granted as a member of the judiciary, Karakatsanis spoke to Canadian Lawyer on a broad range of topics, from her early days in the law, to a distinguished career as a senior civil servant, and now as a judge of the Supreme Court of Canada.

Fluent in English, French, and Greek, Karakatsanis is first-generation Canadian. Her parents came from Greece and ultimately ran a restaurant in Toronto. Karakatsanis attended the University of Toronto and then Osgoode Hall Law School. “We were expected to pick a profession. That was one of the advantages of being in an immigrant family. I had no choice. I was going to go to university, I was going to pick a profession, and I was going to work hard. I am very grateful to my parents,” she says. Extremely proud of her Greek heritage, she says it helped her as a lawyer and as a judge. “It made me more sensitive to different cultures, different perspectives.”

Her brother and sister are both engineers, but she picked law because of an interest in the arts and English literature. “Law seemed like a more natural fit for me. I have to say, I wasn’t passionate about the law in law school. That developed over time.” Yet, she was selected to clerk at the Ontario Court of Appeal in 1981, with judges that included the legendary G. Arthur Martin.

“He was a giant in the criminal law. He was just so incredibly dedicated,” she says. Another mentor was Peter Cory, who went on to serve as a Supreme Court justice. They “taught us the need for civility and humanity when you are standing in judgment of others,” says Karakatsanis.

From 1983 to 1987,  she was in private practice primarily in the areas of criminal and civil litigation. In 1987,  she was asked by the provincial Liberal government to serve on the Liquor Licence Board of Ontario, which was the beginning of a 15-year-career in the civil service. As the chairwoman of the LLBO for seven years, she was tasked with streamlining the regulations involving liquor sales in the province and overseeing a number of competing interests. “I discovered that the policy aspect and the management aspect were fascinating. It was administrative law in action.” One of the more minor decisions, which endeared her to Toronto residents, was permitting bars to stay open an extra hour when the Blue Jays won the World Series in 1993. “I did” give approval, she laughs, when asked about the decision.

The next stop in her career was the Ministry of the Attorney General. After two years as assistant deputy AG, she was named deputy attorney general of Ontario in 1997. One of the most challenging Ontario ministries to run, she oversaw more than a 1,000 lawyers as well as the administration of the courts. “It was a huge job,” she admits. Many of the issues at the time, such as more electronic filing and reducing backlogs in courts, are still front and centre today. “One of the challenges in the administration of justice is we have so many independent participants. How do you make change? I think you make change one step at a time, you make change by working with the different partners,” she suggests.

In 2000, she was asked to serve as secretary to the cabinet and clerk of the executive council. It was the top civil service job in the province.

Former colleagues of Karakatsanis in the provincial civil service have only praise for her management style. “She had a very quiet, thoughtful way of approaching challenges. She was always respectful,” says Malliha Wilson, the current assistant deputy attorney general of the legal services division of the ministry. Karakatsanis would seek out the views of her colleagues and “always come in with an open mind.” At the same time, “she was not afraid to make the tough decisions,” says Wilson. “One of her great strengths was she would bring people along. I think the positions she held, were great experience,” to be a judge, says Wilson.

After serving senior roles as a civil servant under the provincial Conservative government, Karakatsanis was appointed to the Ontario Superior Court in 2002 by the Liberals. It was a significant change, she recalls. “I was a little apprehensive. I went from dealing with broad issues that had deep public impact to dealing with individual cases. But you soon learn that the principles flowing from those individual cases define the rights for us all,” she says. “I went from three or maybe four people whose job it was to make my working day easier, to having one-third or maybe a quarter of a secretary. You learn to be self sufficient,” she says.

A trial level judgeship can be a very solitary position, but she says there was a good sense of community among her Superior Court colleagues. “You are making important decisions that impact people hugely. It is a huge responsibility. I think everyone feels that,” she says.

Karakatsanis was sworn in as a Superior Court judge by Warren Winkler, who was then the regional senior justice in Toronto. “She is a person of depth and very strong character and values,” says Winkler. He says of taking advantage of her past experience in government, “I saw her as a go-to person to help me with administrative duties.” Years later, when he was Ontario’s chief justice and Karakatsanis was also on the Court of Appeal, he tapped into that experience again. This time it was to help with reaching the first-ever memorandum of understanding between MAG and the Court of Appeal over its operations. “I conscripted her to help me with that. She was a big help,” he says.

While praising her administrative experience, Winkler says she was also an asset in a more traditional judicial way. “She proved to be a good substantive judge. She was quick on the law.”

Despite a successful career even before she was appointed to the Superior Court and then nine years on the bench, the media coverage was less than effusive when she was named to the Supreme Court in the fall of 2011. As a civil servant she worked under the Liberals, Conservatives, and NDP. As a judge, she was appointed by the Liberals and elevated by the Conservatives. Yet both The Globe and Mail and The National Post quoted legal “experts” suggesting a link the Conservative party was central to her appointment.

In the spring of 2013, in an editorial that effectively came out of the blue and did not appear to be tied to any specific event, The Globe claimed Karakatsanis was struggling on the Supreme Court. Its main basis for the assertion was that she was not the author of many judgments, compared to Justice Michael Moldaver, who was appointed at the same time. Winkler remembers that editorial and remains angered by it. “Completely unfair and unfounded,” he says bluntly.

He describes his former judicial colleague as someone with a keen legal mind who has strong views. At the same time, “she is measured. She gets her bearings. She is going to be there for a long time,” says Winkler. It is not her personality to try to carve out a higher profile immediately within the court, he explains.

If her impact has been lost on some members of the daily media, it has been noticed within the legal community. “She has been the author of a number of important unanimous decisions,” says Lynne Watt, a partner at Gowlings LLP in Ottawa who heads its Supreme Court practice group. During oral hearings Karakatsanis is not the most interventionist of the judges. “But she is not shy to ask questions,” says Watt.

One of the most significant of her rulings to date is Hryniak v. Mauldin, an early 2014 decision that set out the framework for increased use of summary judgment motions in civil litigation after changes to the Rules of Civil Procedure. “Ensuring access to justice is the greatest challenge to the rule of law in Canada today,” reads the first line of that judgment, which Karakatsanis wrote for a unanimous court. The decision will likely have a profound impact on civil litigation in the country. “It is very nice to have summary judgment in the tool box,” she says. “It will change the way we practise,” says Watt, who believes Hryniak will give judges more leeway to decide matters on a paper record, when appropriate and fewer disputes will have to go to a full trial.

In the little more than a year since the decision was released, summary judgment motions in Ontario have been granted nearly 75 per cent of the time, says Watt, according to research conducted by Gowlings for an upcoming article in The Advocates’ Quarterly. On appeal, about 75 per cent of the decisions have been upheld.

Karakatsanis says she believes the Supreme Court’s decision in Hryniak has resonated with trial judges. “From the court’s perspective, we were trying to encourage the judiciary to feel able to be a little more innovative and sensitive to an affordable, timely, proportional resolution of cases,” without the fear of necessarily being overturned on appeal, she explains. At the same time, the court’s role in this area is limited and Karakatsanis says it is up to the legal profession and the legislatures to work on more ways to improve access to justice.

As both a senior civil servant involved in the actual administration of justice and now as a judge, she is mindful of the complex dynamic between governments and the courts. Writing for the majority in a 5-4 decision in 2013’s Ontario v. Criminal Lawyers’ Association of Ontario, she found that judge’s inherent jurisdiction did not extend to setting the actual rates that an amicus curiae should be paid by in Ontario. As a senior civil servant, Karakatsanis has also been on the receiving end of having to come up with new policies after Supreme Court rulings come out that have an impact on government. She was the deputy AG when the Supreme Court decided M v. H., the seminal case that decided exclusion of same-sex couples from a definition of common-law spouse in the Ontario Family Law Act violated the Charter. “The decision clearly also would apply to many other statutes,” Karakatsanis remembers. “The government brought in an act to amend 67 statutes. The title of the legislation was ‘Amendments Because of the Supreme Court of Canada Decision in M v. H Act.’ It was not an easy thing to do, but it was the right thing to do,” she says.

Now, as a member of the country’s top court, she has been part of decisions involving important social issues that have also been marked by legislative inaction. Rulings in areas such as the right to strike, assisted suicide, and prostitution have sparked criticism, often from the political right, about the Supreme Court exceeding its jurisdiction. “These are important public issues and of course they are open to public debate. I don’t think there is anything wrong with criticizing our decisions or having a discussion about the decisions,” says Karakatsanis.

That doesn’t mean the SCC can ignore tough cases that may be controversial. “It is the Charter that has very much put the court at the centre of some of these important and difficult social issues. It was the elected officials who gave us that role, to decide if the government is acting in accordance with the Charter,” she says. “When there is no government action in a particular area that is the government’s prerogative. It can decide to act or not to act, and it can look at what the consequences are of both courses of action and make its own decision. The court just does the best it can, on the record and the legal principles before it,” she explains.

The recent unanimous decision of the court in the assisted suicide case, Carter v. Canada (Attorney General), stated that while stare decisis is a fundamental legal principle it is also “not a straitjacket that condemns the law to stasis.” Overturning a previous decision, is not done lightly, says Karakatsanis. “You want finality and stability on the one hand. But you also need to have enough flexibility for the law to evolve to meet changing circumstances,” she says.

The Supreme Court has developed its own rules on when it is appropriate to depart from a precedent. “That is where we feel that the need for certainty is outweighed by the need to perhaps better address an issue, correct an error, deal with a precedent that has been difficult to apply or has caused unfairness.” A “better record” or different evidence is not enough. “There has to be a significant change in circumstances,” she states. Of course there is not always going to be unanimous agreement on whether that standard has been met, such as in the dissenting decisions in the freedom of association (Mounted Police Association of Ontario v. Canada (Attorney General)) and collective bargaining (Saskatchewan Federation of Labour v. Saskatchewan) rulings issued earlier this year.

“We all try to reach consensus,” says Karakatsanis. “Sometimes we just see the decision differently. If we can’t agree with the majority reasons, I think it is healthier to set out your own view. Disagreements among judges can be healthy. It can lead to public debate and scholarly debate. Sometimes the dissents of today can become the majorities of the future.”

One of the strongest dissents written by Karakatsanis was in R. v. Fearon, an appeal over whether police need a search warrant to look through a suspect’s mobile phone incident to arrest. The majority decision concluded warrants were not necessarily required, although it modified the common law police powers in this area. Karakatsanis warned of the significant privacy implications of the decision, since smartphones now contain so much personal information they are “windows to our inner private lives.” The modified framework set out by the majority could cause uncertainty over what is permitted and lead to “increased after-the-fact litigation,” she suggested.

Karakatsanis notes even when a judge or judges are dissenting, there is still a consensus about each of their roles on the Supreme Court. “We are members of the court as an institution. It is not about the individual. We have the obligation to uphold the legitimacy of the court, respect for the court and to provide as much certainty on important issues of national importance.”

A continuing source of pride to the Greek-Canadian community, the Hellenic Canadian Lawyers’ Assocation renamed its annual scholarship in her name, three years ago. Her husband Tom Karvanis is one of the organization’s founders and an honorary director. He was also the person who convinced Karakatsanis to accept the appointment to the Supreme Court. “It has been a huge transition on a personal level. You are uprooted from your home, your family, and your friends,” she says. “I asked my husband, I said to him, I think we better let someone know if we are not interested and he replied, ‘how can you say no?’ That was the extent of our discussion,” she laughs.

The transition was made easier by her new colleagues. “It is an incredibly collegial court. The judges here are so welcoming,” says Karakatsanis. After a varied career with a number of senior positions, she is promising to remain at this job for some time. “I am staying. The work here really is extraordinary.”

Noteworthy Supreme Court rulings

Majority decisions

R v. Grant, 2015

Writing for a unanimous court, in a decision issued last month, she stressed that trial courts must go back to first principles when deciding whether defence evidence about an alternate suspect, is admissible. The evidence must be relevant and its probative value must outweigh its prejudicial effect. In upholding a Manitoba appellate decision ordering a new trial for an accused convicted of murder, the Supreme Court rejected the Crown’s view that the test to admit this type of evidence should be closer to the “similar fact” standard.

Hryniak v. Mauldin, 2014

“Ensuring access to justice is the greatest challenge to the rule of law in Canada today,” is how Justice Andromache Karakatsanis’ judgment for a unanimous court began, regarding the approach to new summary judgment powers in Ontario. The new rules were to be interpreted broadly and aimed at providing fair access to affordable, timely, and just adjudication of claims. The decision also laid out a roadmap on how judges should apply the new powers.

R. v. Quesnelle, 2014

The ruling overturned an Ontario Court of Appeal decision that found police occurrence reports involving complainants in sexual assault cases, that were not related to the case before the court, were not records. As a result, the Stinchcombe test for disclosure applied. The Supreme Court concluded that was wrong. Instead, the Mills regime is what should be applied, permitting disclosure only when there is likely relevance and it is in the interests of justice.

Ontario v. Criminal Lawyers’ Association of Ontario, 2013

Writing for the majority in a 5-4 decision, the issue was whether a judge who had appointed an amicus curiae could also set the rate by which the attorney general must pay that lawyer. “Courts do not have the institutional jurisdiction to interfere with the allocation of public funds,” wrote Karakatsanis, unless there is explicit statutory authority or a constitutional challenge. “It is for the duly elected members of the legislature to determine what funds are expended on the administration of justice, not the judges.”

Concurring decision

R. v. Hart, 2014

The so-called Mr. Big stings, where police pose as criminal organizations in undercover operations, was the focus of this criminal appeal. For the majority, Justice Michael Moldaver set out a framework to determine when the evidence obtained from this police technique would be admissible. The Crown must show that the probative value outweighs its prejudicial effect. Karakatsanis agreed in the result, but differed on the test. Instead, the analysis should be through the “lens of the principle against self-incrimination,” as set out in the Charter. “Mr. Big operations entail significant dangers. The detailed artificial reality created by the operation is purposively manipulative and can compromise the autonomy and human dignity of the suspect. Moreover, the technique generates a significant risk of false confessions,” she stated.

Dissenting decisions

R. v. Fearon, 2014

The court split 4-3 on whether search warrants are required to examine mobile phones seized incident to arrest. For the majority, Cromwell stated these searches may serve important law enforcement purposes and set out a framework for when a warrant will not be necessary. In dissent, writing for justices Rosalie Abella and Louis LeBel, the majority decision improperly leaves it up to police to decide whether to exercise an “extraordinary search power.” The significant amount of personal information on smartphones is stressed by Karakatsanis as well as the privacy interests contained within that data. “As technology changes, our law must also evolve,” she wrote.

Tervita Corp. v. Canada (Commissioner of Competition) 2015

The majority overturned a Federal Court of Appeal decision, ordering a company to divest its interest in a landfill operation in northeastern B.C. It found the efficiencies defence in the Competition Act outweighed the anti-competitive effect of the transaction. As the lone judge in dissent, Karakatsanis suggested the majority should defer to the Competition Tribunal in how to weigh the evidence and apply the tests in deciding whether a merger should be approved.

— SK

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