Mark Wiffen, an associate with the law firm McMillan MP, crunches the numbers on the newst Supreme Court Justices, Michael Moldaver and Anromache Karakatsanis (free registration required). His method is to take a look at the decisions each jurist made while with the Ontario Court of Appeal and compare some of those numbers about the whole court's behaviour in order to examine a couple of narratives that emerged once the appointments were announced.
- First narrative: Moldaver was appointed because of his particular expertise in criminal law. Wiffen's analysis: Perhaps. From 2009 to 2011, 44 per cent of the court's published decisions were related to criminal law. In Moldaver's case, 53 per cent of the cases he published on were criminal cases but two other judges heard more criminal cases. The decisions of Karakatsanis, by comparison, who is seen as stronger on administrative law, dealt with criminal law in just 35 per cent of cases.
- Second narrative: The appointments by Moldaver and Karakatsanis are an attempt by a Conservative prime minister to give the Supreme Court a stronger “law-and-order” or rightward tilt. Wiffen's analysis: Difficult to use the numbers to support that view. By Wiffen's estimation, a law-and-order judge is one who will tend to clash with defence lawyers — that's Moldaver, apparently — and who frequently sides the Crown in his or her ruling. The court average when it came to siding the Crown was 73 per cent. Moldaver ruled in favour of the Crown 79% of the time — just a bit more. Defence lawyers had a better shot with Karakatsanis who ruled in favour of the Crown only 63 per cent of the time. When it comes to civil appeals, though, Moldaver and Karakatsanis have much more in common. Appeals by the whole court were allowed, on average, 24% of the time, but Moldaver and Karatsanis were involved in decisions in which appeals were allowed just 16 per cent and 17 per cent of the time respectively.
But, as Wiffen concludes, while these numbers may be interesting, they may not be predictive: “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.”