A more cautious Supreme Court?

The appointment of two new justices to the Supreme Court of Canada may not, as some progressive Canadians have feared, herald a rightward shift.

Indeed, experts say Stephen Harper’s picks, Andromache Karakatsanis and Michael Moldaver, may not bring about much of a shift in tenor from the bench at all.

Importantly, these picks were made as several issues affecting Canada’s queer community, including HIV criminalization and sex-work cases, are expected to be heard before the Court.

Emmett Macfarlane, a senior instructor in political science at the University of Victoria, says Harper’s appointments have actually served to solidify an already moderate and cautious court under Chief Justice Beverley McLachlin.

“Since McLachlin became chief in 2000, the Court has been quite dedicated to developing decisions with as much consensus as possible and even with as much unanimity as possible,” Macfarlane, who has a forthcoming book on the Supreme Court, says. “The result of that, in many cases, has been to actually narrow the scope of the particular decisions and to try to reduce the overall impact, even in those cases where the Court rules against the government on a Charter issue, for example.”

Macfarlane adds that his sense is that the two new appointees are “restrained” as opposed to the more creative or assertive judges appointed by Pierre Trudeau.

“There aren’t really any conservative firebrands out there that Harper can legitimately appoint; so rather than seeing a broad change in the evolution of the Court or a sweeping move in another direction, what we’re really seeing is a more cautious Court,” Macfarlane says.

Carissima Mathen, associate professor of law at the University of Ottawa, agrees, noting that the Court’s been transitioning for several years.

“This is just part of the cycle of renewal,” she says. “A Court does function differently when you’ve had a number of judges together for a long time. In a way, the judges will just be figuring out how they work together and these alliances will appear, which have already started to appear in some ways in some of the cases, but I don’t think it’s going to be that monumental a shift.”

Mathen says one of the biggest changes will come from the loss of retiring Justice Ian Binnie.

“He, along with the chief justice, is one of the hardest-working justices that’s on the Court, just in terms of his output,” Mathen says. “Binnie could write on anything.”

Justice Louise Charron, who is also retiring, did a lot of heavy lifting around writing criminal law decisions, a role Moldaver may now take on.

Moldaver’s reputation as being focused on law-and-order issues may be unfair, Macfarlane suggests, reminding that specialization is just one consideration when appointing new judges. “His record doesn’t indicate one of an overly conservative approach to criminal cases,” Macfarlane says.

However, Mathen is more cautious, citing the Khawaja case, in which Moldaver was part of a unanimous decision that led to a life sentence for a man convicted of conspiracy to commit terrorism. Mathen says Moldaver was more generous to the state on the issue of sentencing.

There are more questions as to where Karakatsanis may fit in, given that her time at the Ontario Court of Appeal was relatively short.

Macfarlane suspects that comments Karakatsanis made before the Commons committee suggest she has an interest in equality issues.

Mathen feels her breadth of experience is refreshing. “It’s positive for the Court to have people who have slightly varied backgrounds.”

Key cases before the Court in the coming years include the issue of HIV criminalization. Two appeals from Manitoba and Quebec courts are tentatively scheduled for February 2012.

The Supreme Court will also likely hear a case that could lead to the decriminalization of sex work. The case is currently before the Court of Appeal for Ontario.

The Mabior and DC HIV criminalization cases, from Manitoba and Quebec appeal courts respectively, challenge the “significant risk” test set out by the Supreme Court in its 1998 Cuerrier decision.

The Court faces arguments that condom use or undetectable viral load should no longer factor, but instead, significance of HIV should be relevant rather than risk of infection.

Activists say changing the law to eliminate the significant risk criterion will make it easier for courts to convict HIV-positive Canadians who don’t disclose their status to sexual partners.

“Given his criminal law expertise, [Moldaver] is extremely well placed to be part of the panel to decide that,” Mathen says. “I don’t know where he’d come down, but it’ll be interesting to see his participation in the appeal.”

Mathen adds that Karakatsanis’s participation will be equally fascinating.

Because of her previous experience as deputy attorney general of Ontario, Mathen says, Karakatsanis has an understanding of the kinds of issues weighed in decisions around prosecutions, an important skill considering that lack of prosecutorial guidelines is a key issue on the HIV-criminalization file.

AIDS Action Now’s Tim McCaskell agrees it will be a tough call but says the relatively restrained reputations of both new justices may be good news for HIV/AIDS activists.

“It may be a case where people who are a bit more conservative won’t want to go and overturn a Supreme Court ruling, in which case they would let [Cuerrier] stand and both Ontario and Manitoba would lose,” McCaskell says. “We would have some sort of determination of what could constitute significant risk.”

Regarding any decision on decriminalizing sex work, both Macfarlane and Mathen say the recent Insite decision is key.

Macfarlane says that if the anti-criminalization side can marshal substantial evidence to show that the law is harmful to women working in the sex industry, they may be successful.

“One of the things that benefited the parties who wanted to keep Insite open was because we had direct evidence in Canada of a particular case that Insite was beneficial,” Macfarlane says. “We don’t have the kind of counter-factual in Canada, because we haven’t allowed for decriminalization of prostitution in any area of the country, so we only have comparative evidence to go by, and I suspect the evidence relating to the harms of criminalizing prostitution – there’s probably less consensus over that evidence than with safe injection sites.

“At the same time,” Macfarlane adds, “I wouldn’t be surprised to see something very similar to Insite where they allow the government to heavily regulate, but they may strike down the Criminal Code provisions.”