“After 148 years of having a majority of men, it seems to me to be about time that there be a majority of women,” she declares during a rare interview to mark her completion of 13 productive years at the high court, where she has written or co-written landmark and leading judgments, including on medical assistance in dying (Carter v. Canada (A.G.), 2015 1 SCR 331), unreasonable trial delay (R. v. Jordan, 2016 SCC 27), access to justice (Hryniak v. Mauldin, 2014 SCC 7), and digital privacy (R. v. Bykovets, 2024 SCC 6). (See also story on her jurisprudential track record).
“Do I think it makes a difference having women judges on the court? Absolutely,” the softspoken 69-year-old judge tells Law360 Canada in her art-filled corner office overlooking the Ottawa River that is reserved for the top court’s senior puisne judge.
In a wide-ranging and exclusive interview, the court’s longest-serving judge addresses some current controversies involving the court, such as complaints from the defence bar about the Supreme Court’s sexual assault jurisprudence and interveners’ objections to the court’s restrictions on their counsel’s oral arguments. She also shares personal reflections about what she looks for from counsel, her highs and lows in a very demanding job, and why she remains deeply committed to it.
Justice Andromache Karakatsanis, the Supreme Court of Canada’s longest serving and senior puisne judge, tells Law360 Canada the top court’s historic transformation into a fully bilingual & female-majority bench is ‘fantastic.’
“We rarely divide along gender lines,” Justice Karakatsanis says. “Most cases, I'm not sure that gender makes a difference, but there are some cases where different lived experiences, different perspectives do bring a different perspective to the case.”
As an example, she points to Justice Bertha Wilson, the Supreme Court’s first female judge, whose judgments helped to revolutionize judicial thinking about the value of women’s unpaid labour in domestic partnerships (Becker v. Pettkus, 20 O.R. (2d) 105)) and to dispel myths and stereotypes about “battered women,” opening the door to successful self-defence claims where a spouse who is in reasonable fear of death or grievous bodily harm kills their abusive partner: R. v. Lavallee, [1990] 1 S.C.R. 852.
“That was a huge difference,” remarks Justice Karakatsanis, who has been one of four women judges for most of her time at the court.
An individual judge’s perspective may make them appreciate certain aspects of a case in a different way than another judge does, she says. “It may mean that you are highlighting, that you are weighing, things differently.”
As well “Charter cases do require value-driven decisions — that’s the nature of our Charter,” she observes. “And so for me, the most important thing is to be transparent about those values and about how you are weighing them.”
The presence of a critical mass of female judges also impacts women’s comfort level on the job.
“It affects the working environment. We can be talking about the most serious legal issue one minute, and then noticing the earrings,” she laughs.
The fact that all the court’s judges since 2022 have been fluent in French and English also “changes the way we work,“ Justice Karakatsanis observes.
“In every [case] conference, we have both languages,” she says of the close-door meetings where the judges confer to decide the appeals. “I think it’s great.”
“I would say that we are truly a bilingual institution because everyone speaks in the language they are most comfortable,” she explains. “I am just as comfortable hearing a colleague speak in English or in French — the comprehension is the same for me.”
The judge, who is also fluent in Greek, will speak French with colleagues socially, and sometimes also during the case conferences. “But if it’s a fine point, I will speak in the language that I feel that I can be the most articulate, the most precise, in expressing my views.”
She says she believes that the existence of a bilingual bench is salutary for both the court and litigants. “I’ve always felt that it was important that anyone can come and plead their case in their language and that every judge understood everything that they said, and all of their written submissions,” she remarks. “I think everyone has that right.”
“So I think it’s fantastic,” she says. “I can’t think of any disadvantages at all.”
(The judge did not — and was not asked to — comment on 2023 amendments to the federal Official Languages Act (Bill C-13) that require Supreme Court of Canada judges to understand English and French without the assistance of an interpreter. Mandatory bilingualism for top court judges remains controversial, particularly in the west, e.g. Ted Morton and Josh Dehass’s opinion piece, published in the Globe and Mail Dec. 2, 2024, arguing that the federal Conservatives “should commit to repealing this unconstitutional statute immediately if they form government.”)
Over her now-13-plus years as a member of the highest court, Justice Karakatsanis has heard close to 700 appeals, yet the heavy responsibility, relentless pace, and inevitable ups and down of the job have not dimmed her “feu sacré” (as the late Supreme Court Chief Justice Antonio Lamer, described it).
Quite the opposite.
Declares the judge, “the work is so extraordinary, it’s hard to think of doing anything else.”
“I have spent most of my career in public service, so I think making a difference is probably something that has been a guiding light for me all my life,” she explains. “I am passionate about the law,” she says. “I never ever forget that the law is about people at the end of the day.”
Speaking recently with Law360 Canada’s Ottawa bureau chief in her Supreme Court chambers, Justice Andromache Karakatsanis says ‘I am passionate about the law. I never ever forget that the law is about people at the end of the day.’
“Everybody is in Toronto, so that’s the pull,” Justice Karakatsanis says. “But my brain isn’t ready to retire. And what better work is there than this?” she asks. “When I took the job, I thought I was here until the end.”
Two things continue to inspire the judge.
“I love the intellectual challenge about it,” she says. “I love the fact that the issues are just so diverse that they touch every aspect of life. And I love the fact that, at the end of the day, our decisions help define what kind of society we live in, so it feels meaningful.”
She also sees the law as integral to the long arc of the moral universe that the late Dr. Martin Luther King Jr. famously declared “bends towards justice.”
“I think probably what guides me is the idea that the law needs to be used for good,” she reflects. “It impacts everybody’s life every day. It shapes our relationships. It shapes our society.”
Contrary to the comparatively low confidence Americans repose in their highest court, recent polls indicate that Canadians still trust in the integrity, impartiality and independence of their apex court.
However, the Supreme Court of Canada faces “the same challenge for all public institutions right now, which is an increasing skepticism,” Justice Karakatsanis says.
“I certainly don’t think we can be complacent,” she observes. “We have to live by the highest standards of professionalism, ethics, integrity [and] excellence — so that’s an individual commitment of each judge. And I think that, as a court, we have to be very mindful that we earn the trust and the confidence of the public so, for me, that’s reflected in how we write our reasons.”
“Public communication is important,” Justice Karakatsanis says of her court, which for more than 30 years has innovated in its communications and public outreach — a key priority also under Chief Justice Richard Wagner’s leadership.
(In 2024, for example, the court began to issue same-day plain-language summaries for its oral judgments from the bench, expanding the public’s access to a large number of judgments that previously languished in obscurity.)
For her part, Justice Karakatsanis opens her judgments with a plain-language overview written with non-lawyers in mind. “I want to try to explain what the issue is, what the decision is, and the reasons in the simplest way I can.”
The judge is mindful that the court’s rulings won’t always be popular or well-received, particularly when decisions involve polarizing social or political issues, so “you have to be able to demonstrate that you’ve done it in a principled, transparent way.”
A high point for the judge in the past 13 years was the enthusiastic reception Manitobans gave the court in 2019 when the nine judges heard appeals outside Ottawa for the first time since the court’s creation in 1875.
“There were hundreds of people lined up around the block to come in and watch us doing a hearing, and every half hour they'd empty the courtroom and new people would come in, and I just found it incredibly moving that members of the public wanted to sit in and be part of one of our hearings,” she says of the two cases the judges heard in Winnipeg. “I do think that it is important that the public ... feel that the court belongs to them, that they can come in,” she says.
Another personal high point for the judge, early on, was working on, and co-writing with then-Chief Justice Beverley McLachlin, Manitoba Métis Federation v. Canada (A.G.), 2013 SCC 14, a milestone judgment where the court ruled 6-2 that the federal government failed to live up to the honour of the Crown by not diligently fulfilling land grant commitments made to the Manitoba Métis in 1870.
“I just remember reading through all of the historical documents about the time when Manitoba became part of Canada and the negotiations, and it was just a high for me because it spoke to the roots of our country as well as to the nature of the Constitution and the honour of the Crown,” recalls the judge, who is fascinated by Indigenous cases as they go “to the soul of our country” and by constitutional law, because it “really defines. . . the structure of our country."
Participating in the groundbreaking Carter case and the court’s unanimous By the Court ruling striking down the Criminal Code’s blanket ban of physician-assisted dying was another professionally satisfying experience, she says, noting there were other per curiam decisions she participated in as well “where I felt really that we had done very good work for the public and something that would really help.”
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When she was in high school, Supreme Court of Canada Justice Andromache Karakatsanis painted the girl in the field (left), based on a photo of herself as a child. ‘In my painting of the birch trees, I was seeking the sense of immersion in a light-filled forest, a serene and bright space,’ the judge says of the piece she created after joining the bench (right).
In the Carter appeal, “I remember walking into the courtroom and feeling that heavy responsibility,” the judge recalls. “It’s also an example of a case where I feel that the court [was] really at its best,” she adds. “It was ‘By the Court.’ We found common ground and really made a difference to people.”
Since she was appointed from the Ontario Court of Appeal to the top court in October 2011, Justice Karakatsanis has welcomed 10 judicial colleagues. Each new member changed the dynamic of a bench its members sometimes liken to an arranged marriage.
“I get to work with some remarkable people, so that’s a high for me,” Justice Karakatsanis smiles.
“The lows,” she candidly adds, “are always the dissents in which you care passionately.”
One example was the 4-3 ruling in R. v. Fearon, 2014 SCC 77, in which Justice Karakatsanis argued vigorously, on behalf of the minority, that people’s “significant and unique” privacy interests in their cellphones mean that, in the absence of exigent circumstances, police searches of personal digital devices generally require judicial authorization.
Another was R. v. Sharma, 2022 SCC 39, a 5-4 sentencing decision involving a young female Indigenous offender and “intergenerational survivor” of the residential school system — a case which gave the court the opportunity to confront what all the judges acknowledged was a “crisis” of Indigenous incarceration.
Writing for the dissenters, Justice Karakatsanis would have struck down a ban on conditional sentences for certain offences, because it was overbroad, in breach of Charter s. 7, and also because it unjustifiably discriminated against Indigenous offenders, in violation of the Charter’s s. 15(1) equality rights guarantee.
The minority pointedly observed at the time that sentencing law is “uniquely positioned to ameliorate — or aggravate — the racial inequalities in our criminal justice system.”
“That one’s a bit heartbreaking,” Justice Karakatsanis says.
For the judge, criminal law is an abiding passion that dates back to her days at Osgoode Hall Law School where she won criminal law prizes. After her 1982 call to the Ontario bar, she unsuccessfully applied to be an assistant Crown but then went on to practise criminal, civil and family litigation for several years with a small Toronto law firm. From there she was hired for several senior public service posts, rising by 1997 to lead all Crowns as Deputy Attorney General of Ontario and, less than three years later, became the top public servant as Secretary of the Cabinet and Clerk of the Executive Council of Canada’s largest province.
Justice Karakatsanis says she finds criminal law engrossing because it involves the relationship between individuals and the state as well as the intersection between individual and community rights and interests. Over her career, criminal cases have also given her the opportunity to see many people and a wide cross-section of society. “That’s why I find it so interesting. That’s why I love it,” she explains.
Law360 Canada asked the judge if she sees any validity in a view, expressed within the defence bar, that recent Supreme Court jurisprudence on Criminal Code provisions that screen and restrict the use of complainants’ sexual history and private records is not working well, on the ground, in sexual assault prosecutions — for either accused or complainants. On this view, sexual assault litigation has devolved, in practice, into a complex, delay-plagued, and expensive procedural morass that may feature multiple pretrial motions for accused to get court permission to introduce at trial what the defence sees as clearly relevant and admissible evidence.
“I know that there’s a lot of delay and a lot more complicated procedures, generally, in criminal law,” Justice Karakatsanis acknowledges. “And I do know that [the legislation has] added procedure, obviously, that wasn’t there before, so I can understand those kinds of comments,” she responds. “But clearly the court and the legislature thought this was an important procedure — so I don’t know what else I could add.”
(R. v. J.J., 2022 SCC 28, ruled 6-3 that Criminal Code provisions for screening evidence, which aim to remove systemic barriers to the reporting of sex crimes, do not violate an accused’s fair trial or other constitutionally protected rights. R. v. Goldfinch, 2019 SCC 38, a 6-1 majority judgment written by Justice Karakatsanis, determined that the admission of sexual history evidence must be carefully circumscribed to ensure its relevance to an issue at trial and that it does not invoke prohibited “twin myth” reasoning that the complainant’s sexual history makes her less credible or more likely to have consented to the impugned actions.)
Asked whether the legal restrictions on evidence of a complainant’s sexual history create “a zero sum game” as between an accused’s rights to a fair trial and to make full answer and defence and complainants’ fairness, dignity and privacy interests, Justice Karakatsanis replies, “No, it is not a zero sum game.”
“If you go back to the reasoning and the rationale why ... the twin myth reasoning, for example, is prohibited, it’s because it’s not relevant, and so relevance goes to the truth-seeking function, it goes to full answer and defence,” she explains. “There are times, individual cases, where a rule may work to an advantage or disadvantage of an accused, but ... I think we are always keeping in mind full answer and defence.”
“You have to in criminal [cases],” she stresses. “That’s a fundamental constitutional right.”
Are interveners welcome at the top court these days, in light of its decisions over the past few years to limit their lawyers’ advocacy to the Zoom platform, and to cut from 10 to five minutes, their time for oral argument?
“I do think that interveners play a very valuable role,” Justice Karakatsanis responds. “I feel very strongly that having interveners is very important because we decide cases for everyone.” Interveners help “us better understand what [an appeal’s] potential impact is and I think it also is important for the public to know that there is participation in our cases,” she elaborates.
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Supreme Court of Canada Justice Andromache Karakatsanis, photographed on the bench Nov. 26, 2024, says ‘I feel very strongly that having interveners is very important because we decide cases for everyone.’
As for Zoom advocacy, Justice Karakatsanis says she personally finds oral argument on the online platform to be compelling.
“Is there an advantage to being in person? A lot of lawyers say there are [advantages] because they can read the [judges’] body language,” she acknowledges. “You’ve got that connection.”
But for the judge, “I find the submissions are very effective by Zoom as well.”
Has oral argument ever changed her mind?
“It happens from time to time — not that often — but it does happen that oral argument can win a case,” Justice Karakatsanis replies. “It’s even happened where I’ve gone in with my preliminary view [based on the written factums] and oral argument has maybe exposed a flaw in the case as well.”
She advises counsel to put their time into their written advocacy, however, “because, in fact, we do go in with preliminary views.”
Yet oral argument remains “important because it is an opportunity to address any problem areas, and sometimes it’s an opportunity to kind of remind the judges what’s at the heart of the case — so it does make a difference,” she says.
For Justice Karakatsanis, a persuasive counsel is one who can, to the extent possible, “simplify matters and go to the heart of the case— who doesn’t spend a lot of time trying to defend a weak point; who acknowledges the weaker point, or the strongest argument on the other side, and addresses it head on; who recognizes when the questions [from the bench] are really about a judge who’s really struggling with a particular issue and is looking for help.”
What helps make a judge persuasive to their colleagues?
“The first thing that comes to my mind is intellectual honesty,” Justice Karakatsanis answers. “What does intellectual honesty mean for me? It means that I’m very much aware that there will be some times when I may bring some preconceptions or certain perspectives [to an appeal] and that I need to be aware of them and make sure that they are not a substitute for rigorous analytical examination of the issues. So intellectual honesty to me means that you are setting out a position that is supportable and is supported by the law and by the analysis and by the legal principles, and so it’s a transparent and honest analysis.”
Asked how her 15 years as a non-partisan public servant in Ontario—garnering high-level appointments from successive Liberal, NDP and Progressive Conservative premiers — has influenced her work as a judge, Justice Karakatsanis says that those experiences gave her “a broad understanding of how government works and a broad perspective on social, economic and legal issues.”
“I came to deeply respect the independent and complementary roles and capacities of the three pillars of our constitutional democracy--the executive, the legislature and the judiciary,” she explains. “I learned to deal with such a diversity of public interest issues. I developed the skills for principled broad public policy analysis and practical detailed delivery of public services — everything had to work at both levels, the principled and the practical. And we needed to communicate with the public in a way that they understood and that maintained confidence in our public institutions.”
When Justice Karakatsanis joined the Supreme Court of Canada in 2011, then-Chief Justice McLachlin offered some advice about maintaining a balanced life in what can be an all-consuming job.
“She told me to take one day off every week,” the judge shares. “And I’ve never quite managed that.”
“You’re just working all the time, so it’s hard work,” she says. “But I don’t find it particularly stressful because we can take the time we need to work through the issues.”
Justice Karakatsanis says she likes to relax by reading books — an eclectic mix of good literature, gripping mysteries and science fiction. “We read all the time for work, but I love to read,” the judge says of the habit she developed in childhood.
Her large family also grounds her, as does her strong connection to her Hellenic heritage and community.
“My Greek heritage is very much a part of who I am,” she says. “I love the Greek culture, the importance of family and community, and the Greek zest for life.”
“My Greek heritage has also been important to me in my professional life,” she adds. “It has made me understand some of the challenges that immigrants face and more receptive to different cultures. It has given me a sensitivity to other perspectives that have helped me as a lawyer and a judge. And having two languages, English and Greek, made it much easier to learn a third, French.”
The judge has also been a prolific artist since childhood. As an adult, she turned to painting landscapes and portraits, mainly in oil.
“I love to paint,” she says. “It is relaxing and wholly engrossing, engaging a different part of me. Painting helps me see the world in a more conscious, richer way, seeing colour and tone, texture and shape, evoking an emotional response. It touches the soul.”
Unsurprisingly, Justice Karakatsanis has found it difficult to find the time to paint since she was appointed to the Supreme Court.
“But I have a couple of paintings in progress,” she discloses — a sunset from her family’s cottage and a portrait of her grandson at the beach. “Hopefully art will be a larger part of my life after the court!”
Photos of Justice Andromache Karakatsanis: Roy Grogan Photography
Paintings by Andromache Karakatsanis: Photos published with the artist's permission.
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