SCC judge’s 13-year track record shows concern for fairness, privacy rights & access to justice

Law360 Canada (January 24, 2025, 3:27 PM EST) -- Supreme Court of Canada Justice Andromache Karakatsanis rarely attracts headlines, but her low public profile belies her impact on the legal landscape over the past 13 years in judgments that enforced the Charter rights of Canadians and pushed to expand access to justice, court watchers say.

Since the fluently bilingual judge from Toronto (she also speaks Greek) joined the top court on Oct. 21, 2011, she has written or co-written some of its most famous and impactful constitutional judgments, such as R. v. Jordan, 2016 SCC 27, which put teeth into the Charter’s s. 11(b) speedy trial right and Carter v. Canada (A.G.), 2015 1 SCR 331, the court’s unanimous decision which declared unconstitutional the Criminal Code’s blanket ban on assisted suicide.

The 69-year-old judge, who has heard more than 650 appeals so far, shows no sign of easing up, telling Law360 Canada recently in an exclusive interview that she loves her work and anticipates continuing until mandatory retirement at age 75 (see story).

When Justice Karakatsanis was appointed by then-Prime Minister Stephen Harper in 2011, some jurists anticipated the judge’s rulings would prove to be highly deferential to government, particularly in light of the 15 years she worked at the highest levels of Ontario’s public service before becoming a trial judge in Ontario’s Superior Court in 2002.

However, a scan of Justice Karakatsanis’s 13-year voting record at the Supreme Court reveals a non-ideological and independent judge, not easily pigeonholed in black and white terms.

University of Alberta law professor Gerard Kennedy said Justice Karakatsanis has been comparatively deferential to the state in cases involving executive administrative action. For a unanimous court, she also set out a broad view of Cabinet secrecy in a decision about public access to Ontario Premier Doug Ford’s mandate letters to his ministers: Ontario (A.G.) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4.

But Justice Karakatsanis has also led, or been part of, Charter judgments whereby the top court has struck down laws that unjustifiably breached Canadians’ constitutional rights and freedoms, including a law requiring the mandatory inclusion of all convicted sex offenders in a sex offender registry (R. v. Ndhlovu, 2022 SCC 38) and a law that restricted the Charter-guaranteed right to vote (Frank v. Attorney General of Canada, 2019 SCC 1).

The judge has also weighed in often on sentencing, taking what is arguably the court’s most robust approach to enforcing the Charter’s s. 12 ban of cruel and unusual punishment. In a lone concurrence, for example, Justice Karakatsanis held that the one-year mandatory minimum penalty for child luring was unconstitutional because lesser punishments would in some cases be “fit and proportionate”: R. v. Morrison, 2019 SCC 15. Dissenting jointly with Justice Mahmud Jamal, the judge would also have struck down a five-year mandatory minimum sentence for robbery with a firearm: R. v. Hilbach, 2023 SCC 3. And writing for the dissenters in R. v. Poulin, 2019 SCC 47, a 4-3 decision, Justice Karakatsanis urged a broader interpretation than that adopted by the majority of an offender’s Charter s. 11(i) right to be sentenced to “the lesser punishment” in cases where penalties change between the offence and sentencing.

In criminal cases, Justice Karakatsanis has often shown herself unafraid, pursuant to s. 24(2) of the Charter, to exclude real evidence and confessions tainted by illegal state conduct, for example: on behalf of the minority in the 5-4 decision R. v. Stairs, 2022 SCC 11, advocating a more stringent standard for searches incident to arrest in a private home; as the swing vote backing Justice Russell Brown’s 5-4 majority judgment in R. v. Lafrance, 2022 SCC 32 (right to counsel) and 3-2 majority decision in R. v. Le, 2019 SCC 34 (arbitrary detention), and; endorsing Justice Sheilah Martin’s dissents in R. v. Campbell, 2024 SCC 42 (warrantless search and seizure of cellphone text messages) and R. v. Beaver, 2022 SCC 54 (exclusion of evidence).

Observed Kennedy, “she definitely is a great believer in the Charter, in constitutional law, and its influence.”

Justice Karakatsanis has also been a key player in the ambitious culture shifts the Supreme Court of Canada has tried to spur in the areas of administrative, civil and criminal law.

In addition to co-writing the court’s majority judgment in Jordan — which skewered the criminal justice system’s “culture of complacency” and imposed caps on trial delays—Justice Karakatsanis wrote Hryniak v. Mauldin, 2014 SCC 7, the court’s leading decision on summary judgment, which pushed to expand access to justice in civil cases by instructing that this rule of civil procedure must be interpreted broadly, in favour of proportionality and fair access to the affordable, timely and just adjudication of claims.

“Justice Karakatsanis has served with distinction and is widely respected within the legal community,” University of Ottawa constitutional law professor Adam Dodek told Law360 Canada.

Added Kennedy, “she’s definitely left her mark. . .particularly in areas that are related to access to justice.”

The judge has been a leading judicial voice for digital privacy, going back to her judgment for the Ontario Court of Appeal in R. v. Cole, 2011 ONCA 218 which held that employees can have a reasonable expectation of privacy in their workplace computers and thereby benefit from the Charter’s s. 8 protection against unreasonable search and seizure, a principle subsequently accepted by the Supreme Court of Canada (R. v. Cole, 2012 SCC 53).

At the Supreme Court, the judge wrote for the court on such cutting-edge subjects as whether police need prior judicial authorization to seek IP addresses from third parties in crime investigations (R. v. Bykovets, 2024 SCC 6) and how to analyze police entrapment in virtual spaces (R. v. Ahmad, 2020 SCC 11, co-written with Justices Brown and Martin), a framework Justice Karakatsanis elaborated on for a unanimous court in R. v. Ramelson, 2022 SCC 44.

“Justice Karakatsanis has grown remarkably during her time on the court,” said Gerald Chan of Toronto’s Stockwoods LLP, who often appears before the Supreme Court.  “One of her strongest contributions has been in the area of search and seizure,” he said. “She has boldly pushed the bounds of legal doctrine, where necessary, to fulfill the promise of s. 8 of the Charter to protect privacy in the face of novel technologies that threaten it.  R. v. Bykovets is the perfect example of that.”

In sexual assault cases — among the most litigious and polarized areas of the criminal law — Justice Karakatsanis has interpreted, in both majority opinions and in her dissents, evidentiary provisions Parliament legislated to protect the fairness, dignity and privacy interests of complainants — articulating the court's approach in a way that feminist scholars have described as very fair and balanced.

Notably Justice Karakatsanis wrote for the court R. v. Goldfinch, 2019 SCC 38, which provided the court's guidance on provisions commonly known as the “rape shield” and which stressed that the admission of sexual history evidence must be carefully circumscribed.

The judge also wrote the court's 5-2 majority decision in R. v. R.V., 2019 SCC 41, which further elaborated on the purpose, scope and application of the Criminal Code’s s. 276 process for controlling the admission and use of evidence of a complainant’s sexual history in trials.

“Over the course of Justice Karakatsanis’ tenure, the court’s record in the area of sexual assault law is one of the more important eras in sexual assault jurisprudence,” said Dalhousie University law professor Elaine Craig, author of Putting Trials on Trial: Sexual Assault and the Failure of the Legal System.

“She has written, or been part of, a body of jurisprudence in the past five years from the Supreme Court of Canada that has established an expectation that the rights and protections provided to vulnerable sexual assault complainants [by Parliament] are actually upheld by trial courts,” Craig said. “This is huge.”

Goldfinch has had “an enormous impact on the day-to-day operation of sexual assault decisions,” she said.

However, from a defence perspective, the Supreme Court’s approach in its recent sexual assault “trilogy,” is not working on the ground, criminal lawyers told Law360 Canada.

(The trilogy includes the court’s majority decision in R. v. J.J., 2022 SCC 28, which upheld the constitutionality of amendments to the Criminal Code that aimed to remove barriers for complainants within sexual assault trial processes.)

“Sexual assault litigation has become a procedural morass characterized by complexity, expense and delay,” said one defence counsel. “The typical sexual assault trial now involves multiple pre-trial motions in order for the defence to get permission to tender obviously relevant and admissible evidence, like text messages between the complainant and accused. This is a massive waste of time and money."

"Parliament is primarily to blame here," the lawyer added, but the court "has made things much worse” in how it interpreted the legislative provisions and in refusing to strike them down.

Another litigator, who also did not wish to be named, echoed the commonly expressed view by defense counsel that a number of the Supreme Court’s sexual assault judgments have negatively impacted the Charter-guaranteed fair trial rights of accused persons.

“That said, [Justice Karakatsanis] is still one of the best criminal law judges on the court,” the litigator remarked. “She’s one of the leaders on criminal law [Charter]-rights-based decisions. I think she has written some really standout decisions in that area.”

In that lawyer’s view, Ndhlovu, the 5-4 decision which Justice Karakatsanis co-wrote with Justice Martin, is among the court’s best criminal law decisions in the past two decades. (In Ndhlovu, the top court declared invalid — as an unjustified violation of the Charter's s. 7 liberty guarantee — two Harper-era Criminal Code provisions that eliminated any judicial discretion as to who is added to the sex offender registry.)

In her judgments, Justice Karakatsanis has also shone a spotlight on the over-incarceration of Indigenous people and spoken out about systemic racism in the criminal justice system against Indigenous women, both as crime victims (R. v. Barton, 2019 SCC 33) and as offenders (R. v. Sharma, 2022 SCC 39).

Kennedy said he sees Justice Karakatsanis as “middle of the road in criminal law.”

“There are times she’s written some very pro-accused decisions,” he explained. “Other times, she has written decisions that are much more sympathetic to the Crown.”

Kennedy also identified a thread he sees running through the judge’s opinions in several areas of the law.

“She’s clearly greatly concerned about access to justice,” he said. “One can see it in many of her administrative law cases and her faith in the ability of the administrative state to dispense justice.”

(The judge also chairs the national Action Committee on Access to Justice in Civil and Family Matters, which works to improve access to justice for Canadians.)

Justice Karakatsanis, along with now-retired Justice Rosalie Abella, has been the court's leading champion for deference in administrative law cases.

“Her views on administrative law are very well known and clearly influential,” Kennedy said. “They remain somewhat controversial.”

“She’s frequently in dissent in administrative law, but we nonetheless see her writing the majority in many administrative law opinions,” he noted.

“It’s clearly an area that means a lot to her.”

“And whether or not she is influencing [Supreme Court] dissents or majorities going into the future,” Kennedy added, “there’s no doubt she’s made her mark in that area.”

Photograph of Justice Andromache Karakatsanis: Roy Grogan Photography

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