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Moldaver led SCC on criminal law for 11 years but spent first three years looking for the exit

Monday, September 26, 2022 @ 2:44 PM | By Cristin Schmitz

Last Updated: Monday, September 26, 2022 @ 4:02 PM

Michael Moldaver, the judge who most shaped Canadian criminal law over the past 11 years, confesses he remains troubled that accused who are “clearly guilty” of serious crimes sometimes get acquitted, because courts throw out crucial evidence tainted by state illegality that many Canadians would not see as justifying such a drastic remedy.

“I see it as a system in which two wrongs, somehow, often make a right, and I have trouble with that,” Moldaver told The Lawyer’s Daily, alluding to the Charter’s s. 24(2) power to exclude evidence, such as seized drugs or weapons that are obtained through police or other state misconduct, where its admission “would bring the administration of justice into disrepute.”

“I don’t like to exclude real evidence, unless the police have engaged in conduct that I would consider, and most Canadians would consider, egregious conduct,” Moldaver explained. “I don’t apologize for that.”

Newly retired Supreme Court justice Michael Moldaver

Newly retired Supreme Court justice Michael Moldaver

“What I have trouble with is, where the police breached someone’s Charter rights, and as a result, evidence goes out that results in someone who is clearly guilty, and often of serious offences — gun crimes, drug crimes — walking free. The only time that you could actually, in my view, justify this would be if the conduct of the police was such that we, as Canadians, would say, ‘this is simply unacceptable’ ... and as a result ... we’re going to exclude this evidence ... for the repute of the administration of justice.”

(See also Part 1 of The Lawyer’s Daily exclusive interview here.)

Ascertaining when judges are constitutionally required to throw out evidence tainted by illegality, including confessions and real evidence, continues to spark disagreement at the highest court — where Justice Moldaver warned, in a recent dissenting opinion, that “it is the exclusion of reliable and crucial evidence implicating [the accused] in very serious gun and drug offences that is far more likely to cause the public to lose faith and confidence in our criminal justice system.” When assessing what could bring the administration of justice into disrepute, Moldaver thinks it’s important to realistically assess what reasonable and well-informed Canadians think.

“I think that there's a lot of people out there that are sympathetic to a view that says that ‘people who are clearly guilty should be found guilty’ and ... in [some] respects, that the system has given so much weight to the process and so on, that we’re kind of losing sight of what I would call truth and justice in the process,” he said.

Going back 20 years, Moldaver was already raising the alarm that, in his view, the trial of the accused, in the Charter era, was often overshadowed by the trial of the police investigation, a controversial opinion but one expressed also by some other prominent appellate judges.

In Moldaver’s view, the criminal justice system should provide “quality justice” in a “timely and effective fashion.”

“I am looking for a justice system in which those who are innocent, or may be innocent, are freed, and those who are guilty are convicted, subject to state conduct that we, as Canadians would simply find intolerable and will not accept,” he explained.

During a wide-ranging exclusive interview in the Supreme Court’s comfortable booklined reading room, Moldaver recalled ups and downs in his almost-50-year career as a criminal lawyer and judge, including grappling with: blowback from defence counsel over his 2005 remarks that unmeritorious Charter claims were unduly clogging the criminal justice system; the abrupt departures from the Supreme Court of Justices Clément Gascon and Marc Nadon; and a particularly heart-rending first-degree murder case.

Newly retired Supreme Court justice Michael MoldaverNewly retired Supreme Court justice Michael Moldaver

Moldaver also spoke of career highlights, such as participating in the 2007 Ontario Court of Appeal panel that finally quashed the wrongful murder conviction of Steven Truscott and, decades ago, being presented with a small trophy from a grateful client, after she was acquitted of murdering her abusive husband — a talisman Moldaver still keeps in his office.

What’s next for someone who has no inclination to retire?

“I was hoping that since Judge Judy retired I’d get a call,” jokes Moldaver, who found a surprising job offer on his doorstep, the day before he retired from the Supreme Court of Canada Sept. 1.

“There was a jury notice waiting for me,” he laughs. “It shows you how well known you are.”

Moldaver did not seek out the limelight as a judge, but he is well known in the legal community as one of the Supreme Court’s most influential and prolific judges, both as a core member of majorities in split decisions, and as the court’s criminal law expert, writing for the court more often than anyone else in the single largest area of the docket.

And although the criminal law is technical and complex, Moldaver focused laser-like on how the court’s judgments might work on the ground, taking pains to try to make its legal guidance as clear for trial judges, lawyers and juries as he could.

“His judgments are very pragmatic, imbued with common sense,” remarks University of Calgary criminal law professor Lisa Silver. “In his decisions, he often meted out advice to trial judges — almost in a checklist, step-by-step fashion — to assist them in their duties. He wanted to relieve their burden by providing clarity to them,” she said, noting that the judge did the same for police and lawyers.

Having known Moldaver for more than 30 years, Silver describes him as “generous, humble, and funny — in short he is a mensch!”

He has certainly been unabashedly human over the years, disclosing during talks with the legal community his feelings of inadequacy each time he took on a new job.

Over his half-century legal career, Moldaver told The Lawyer’s Daily he constantly wrestled with stress, tension and anxiety (leading to sleepless nights), whether it was: leaving “a piece of myself in the courtroom” every time he defended a murder charge; the mild heart attack he suffered through overwork as a trial judge, often rising at 4 a.m. to write jury charges; or the persistent self-doubt he felt after joining the Supreme Court of Canada, where he confesses “I spent the first three years here, literally, thinking how soon can I leave and hold my head up high?”

His job performance at the Supreme Court of Canada exceeded his confidence from the beginning. Moldaver hit the ground running in 2011, cranking out in 2012 the most majority and unanimous written opinions (11) and the most governing criminal law jurisprudence, while also steering the court in a more law-and-order direction, and having the most “winning” voting record that year.

His work output continued apace until his retirement this month, writing, or co-writing, nearly one-third (approximately 31 per cent) of the court’s unanimous or majority criminal law judgments — surmounting the high bar set by Justice Louise Charron, who penned a quarter of the court’s criminal law jurisprudence in the seven years before her 2011 retirement, a count by The Lawyer’s Daily indicates.

All in all, according to the Supreme Court’s own statistics, Justice Moldaver heard 83 per cent of all the court’s appeals from Oct. 21, 2011, to Aug. 31, 2022, (634 of 762 cases), and wrote 147 reasons for judgment (including dissents and concurrences, and rulings delivered orally from the bench).

More than three-quarters (about 77 per cent) of his written oeuvre is composed of judgments with criminal law dimensions (including extradition, judicial reviews etc.) — with multiple leading opinions on important criminal law issues such as search and seizure, juries, the constitutional right to trial within a reasonable time (e.g. Jordan); and sexual assault (e.g. Barton and J.J).

Moldaver also made his mark in non-criminal majority judgments, such as Groia, which extolled the importance of the defence bar’s “fearless advocacy,” and TWU which upheld equal access to the legal profession (See some of Moldaver’s milestone civil judgments below).

A mainstay of majorities in split decisions, Moldaver also wrote some notable dissents (mostly backed by others), including a widely admired lone critique of the majority’s far-reaching, if controversial, decision to void Federal Court of Appeal Justice Nadon’s 2013 Supreme Court appointment.

The personal nature of some of the publicity around that case troubled Moldaver. “He’s vilified in the press for virtually every day — that he has no business being here and so on — and this is a very decent man,” he explained. “He did not deserve this, and so that makes me feel bad.”

Moldaver said he was also saddened to learn that his “dear friend” and “a great colleague and a great judge,” Justice Gascon, had been struggling with anxiety and depression, culminating in the judge’s early departure from the court in 2019. “I felt I really didn’t see any of the signs that might go with it,” Moldaver recalled. “So that was a low point.”

One gut-wrenching decision was R. v. Hart, 2014 SCC 52, a Moldaver-written judgment which created a new common law rule of evidence that confessions emanating from Mr. Big scenarios are presumptively inadmissible. The majority went on to exclude the accused’s multiple confessions — expressing its doubt that without the confessions, guilt could be proven at a new trial.

“So he walked free, having been charged with killing his two beautiful little children, drowning them,” Moldaver said.

“That takes a toll,” he admitted.

“You have to do what the law demands, and what you feel is right,” he said. But he suggested that “there’s a higher power that will maybe mete out justice in a different way.”

For Moldaver, a highlight at the Supreme Court was having the opportunity to travel across the country to speak and meet with judges in other courts.

“I have enormous respect for trial judges and appellate judges, but trial judges in particular, who are often working night and day,” he explained.

“To me they’re the backbone of the whole system, and I wanted to encourage them ... to make them understand that it’s not an easy job and to kind of put it in perspective: ‘Be yourself. Don’t try to be what someone else is. Just be yourself. Be true to yourself. And if you feel that there’s an area of the law that you would like to go out on a limb a little bit, with a view to enhancing the justice system, with a view to making it better, do it!’” he advised them. “And if you get struck down, so be it.”

Moldaver also advises litigators to stay true to their own styles, which may not be colourful or dramatic, noting that he has seen many effective counsel who quietly get the job done. 

As an out-of-the-box thinker himself, the co-author of Jordan, the speedy trial juggernaut, said courage is necessary on the bench.

“The law will never develop — in my view, it’ll remain stagnant — if we don’t have judges who see things, and who say, ‘You know, I think this should be changed’” — while taking into account relevant considerations such as stare decisis.

“Anybody who has never been overruled as a trial judge is not doing their job in my view,” Moldaver said.

Forcefully and bluntly calling out problems, as he sees them, in the justice system has sparked backlash on occasion, notably when he urged criminal lawyers in 2005 to forgo weak Charter claims that were causing delays and overloading the criminal justice system.

The defence bar took lasting offence, interpreting him as accusing criminal lawyers of making illegitimate or frivolous claims, rather than asserting their clients’ real constitutional rights requiring vindication.

“My speech that caused them initially to get upset with me was not designed to centre them out or to make them look like the bad people. It wasn’t,” Moldaver said.

“This was a speech about advocacy, and good advocates pick their spots,” he explained. “They don’t, as I said perhaps a little too colourfully ... treat the Charter as ‘your personal genie in a bottle’. You’ve got to look at the impacts it has on the justice system as a whole, and so suddenly, you have a justice system that, and I'll use murder as an example, is going from a seven- to 10-day trial — where a judge and a courtroom are tied up — to seven weeks or seven months.”

“I’ve got nothing against the Charter,” Moldaver stressed. “The Charter is a magnificent document, don’t get me wrong.

“It’s everything that we would like to become, and everything that we’d like to be as Canadians, and we would ascribe to, we would hope for, we would aspire to,” he said.

“But there wasn’t enough thought given to what ... tectonic changes were going to occur in our system as a result of it, and I don’t think the infrastructure was there to withstand these enormous changes.”

Do Canadians get better criminal justice as a result of the Charter?

“That’s a very good question,” he responded. “And I’m not at all convinced that the quality of justice has been enhanced so much that we could say, ‘OK we’re far better off now than we were then.’ ”

“We are better off, than we were then,” he emphasized. “There’s no question about that, and I commend the defence bar for moving us in that direction. I don’t have any problem with that, and I have enormous respect for the defence bar.”

Justice Moldaver decided cases based on the evidence and legal arguments placed before him, but he said he also asked himself “what, in my heart, do I think is best for Canadians, staying within the propriety of the role I have?” — i.e. as a judge, abiding by stare decisis, restraint, and his conviction that courts must stay in their own lane when engaged in constitutional review.

His approach to the criminal law is often described as being on the “law and order” side of the spectrum — i.e. generally a less expansive approach to Charter rights, and a more restrictive approach to granting remedies.

His conservative leanings in criminal law (mostly reflecting the court’s unanimous or majority views) have sparked fierce criticism at times from defence counsel and civil libertarians, while also winning plaudits from women’s and victims’ rights groups who see a better “balanced” approach to the Charter, which takes into account the rights of individual accused but also broader societal interests — such as fairness to sexual assault complainants and the removal of barriers to the reporting of sexual assaults.

Lawyers have also told The Lawyer’s Daily that Justice Moldaver has been receptive to defence arguments in cases that raise real questions about the reliability of the Crown’s evidence, and real concerns that a factually innocent person could be convicted.

Asked if he sees himself as “conservative” and tough on crime, Moldaver said he believes he is “realistic.”

Those who prey on weak and vulnerable people, e.g. defrauding the elderly or abusing children, “ought not to look to me for a break,” he replied.

But he added, “I can be as soft as anybody, and in fact have been.”

As a trial judge, and as a lawyer, Moldaver said he “bent over backwards” to help people he felt were deprived or abused in their lives.

At times that meant  going “out on limbs” — such as when he suspended the sentence of a man who killed the father who abused the accused physically and emotionally for years.

“You can well imagine how psychologically destroyed this young person was, and I was not about to send him to jail and, quite frankly, I didn’t care if the Court of Appeal overruled me or not,” Moldaver recalled.

“In fact some of the greatest moments that I’ve ever had in a courtroom are those that ... I’ve been able to, perhaps, help somebody, I’ve been able to be the first person in authority that has ever spoken positively to a young person, and rather than yelling at them, giving them hope.”

Moldaver said helping people was part of what kept him, and drew him into, the criminal law (along with childhood dreams of following in the footsteps of an iconic television lawyer, Perry Mason, who won murder trials, week in and week out.)

After graduating at the top of his year in 1971 from the University of Toronto’s law school, and articling with G. Arthur Martin, the dean of Canadian criminal law, Moldaver and Alan Gold, another future star litigator, joined Eddy Greenspan’s Toronto firm Pomerant, Pomerant and Greenspan.

“I learned very quickly that Perry Mason was a myth,” Moldaver said. “I did my first murder case in my first year of practice, and my heart was in my mouth for the 10 days or so that it took to complete that trial. I’d wake up every morning thinking … I just wanted to pull the covers over my head. My stomach was full of butterflies, and I kept thinking to myself, ‘Why didn’t you go into dentistry?’ … You know with a dentist, if you’re relatively prepared and you have some skills, chances are pretty good, you’re going to beat the tooth — probably about 99 per cent.

“But as a lawyer in the courtroom, I learned very quickly that you could do a sparkling job, you could be prepared to the nth degree, you could put your heart and soul into it ... and still lose!” Moldaver said. “So the message was, there’s no certainty in the courtroom obviously, [and] my practice, frankly, morphed into something that was very different than I had originally contemplated, namely going into court every week and winning another murder case.”

Moldaver defended and won many murder cases. But he said he also tried to help clients who were guilty of something, if not always exactly with what they were charged, including presenting to the sentencing judge their difficult and mitigating circumstances. “Some used to call me more of a social worker than a criminal lawyer, but I tried to help people deal with, and address, the problem, or problems that had caused them to become involved in the criminal law in the first place,” he remembered.

Courtroom losses in jury cases hit Moldaver very hard, partly because he took the highly unorthodox stance that he would only defend people in whose innocence he believed (or at least had a doubt about their guilt).

“Quite frankly I told a number of clients that came to me charged with murder that ‘I’m sorry, I’ve got nothing against you. But I’m not prepared to take your case because, if I don’t believe, I can’t — to put it crassly — sell it to the jury.’ ”

“I always found that I lost a piece of myself in the courtroom, win, lose or draw,” Moldaver reflected.

“It was not a fun experience. ... I relished my wins far less than I recalled, or lived, my losses, and so if I lost a murder case, and there were a few that I did ... for sometimes days, weeks and months I would punish myself ... thinking ‘Why didn’t you do this? Why did you ask that question? Why didn’t you ask this question?’ And so on and so forth. Until I came to a realization, in my own mind, that sometimes the facts are the facts, and the jury’s verdict was appropriate in the circumstances.”

Joining the Supreme Court of Canada, after working extremely hard for five years as a superior court trial judge, and 16 years at the Ontario Court of Appeal, was a difficult adjustment.

The near-exclusive diet of weighty and complex appeals; the judges’ gruelling work habits (often seven days a week); the unaccustomed need to collaborate closely with eight colleagues; and “microscopic” public scrutiny of the court’s work, all played a part.

“The work here is relentless. It just never, never stops — there’s always something,“ said Moldaver, whose last two-week holiday was a decade ago. “I know precious little about Ottawa,” except how to drive home from the Supreme Court and back, he laughed.

After plunging into his work at the Supreme Court, Moldaver said he slipped back into “bad habits”:  working day and night, “snacking” and not exercising regularly — eventually packing on 20 or 25 pounds (which he has since shed).

The turning point for him at the Supreme Court was finding his own rhythm, he said. “I realized that I could do it, and I also got a handle on the place. I started to get more comfortable. I started to see how things work, and so on. ... I got to a point where I had ... my own ways of doing things … of dealing with judgments and so on — how much I would read before I went into the courtroom ... how picky I would get with other people’s judgments … putting water in the wine, when necessary,” he explained.

Dissents (19 of 147 written opinions) were kept to the minimum.

“I would not dissent unless it was something that I absolutely couldn’t live with, that was my litmus test,” he disclosed. “Because …if you’re going to dissent on a regular basis, you’re doubling your workload around here and, as it is, I find it hard enough to kind of keep up.”

Moldaver said all nine Supreme Court members work very hard.

“We try to do the best we can. We’re all dedicated.”

Now officially retired from the bench (he has five more months to sign on to Supreme Court judgments), Moldaver intends “to keep his hand in” the law, perhaps by joining a law firm.

“I would be interested in doing a number of things, not so much even in the criminal realm,” he said. “There are 32 years of judging ... I would hope I can be of some benefit.”

Non-criminal milestone decisions by Moldaver since 2012

Grant Thornton LLP v. New Brunswick, 2021 SCC 31. 7-0 judgment clarifies when a cause of action arises in context of statutory limitation periods.

9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10. 7-0 judgment, co-written with Wagner J., affirmed for the first time that third-party litigation funding agreements are not per se illegal and shed new light on many aspects of the Companies’ Creditors Arrangement Act (CCAA) — the federal law which enables the reorganization of insolvent debtor companies facing claims in excess of $5 million.

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 and Bell Canada v. Canada (A.G.), 2019 SCC 66. Co-authored, with six others, the administrative law majority blockbuster which rewrote the standard of review framework.

TELUS Communications Inc. v. Wellman, 2019 SCC 19. Ruled 5-4 that Ontario business customers of TELUS can’t piggyback on a $520-million consumer class action for alleged cellphone overbilling because, under Ontario’s Arbitration Act 1991, they are bound by their TELUS service contracts to arbitrate their disputes rather than sue.

Groia v. Law Society of Upper Canada, 2018 SCC 27. Landmark majority judgment underscored the importance of “fearless advocacy” by the criminal defence bar, overturning 6-3 the Law Society of Ontario’s much-criticized professional misconduct conviction of Toronto securities litigator Joe Groia, while clarifying the approach and standard for determining when lawyers’ “uncivil” courtroom conduct rises to professional misconduct.

Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33. In a case that galvanized the legal profession (almost 30 interveners), the majority judgment, co-written with Justices Rosalie Silberman Abella, Karakatsanis, Gascon and Chief Justice Wagner, upheld as reasonable the Ontario and B.C. law societies’ refusal to accredit TWU’s proposed law school due to the university’s discriminatory faith-based code of conduct which required, under threat of expulsion, that students and staff not engage in sexual activity, other than in a marriage between one man and one woman.

Henry v. British Columbia (Attorney General), 2015 SCC 24. In green lighting a lawsuit against the Crown by a wrongfully convicted man, the 4-3 majority held that a claim for Charter damages against the Crown for non-disclosure must prove that evidence was intentionally withheld (but malice is not required).

Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. Widely admired lone dissent, which vigorously argued against the court’s 6-1 constitutional juggernaut which voided Federal Court of Appeal Justice Marc Nadon’s 2013 appointment to the Supreme Court.

Photos of Justice Moldaver by Roy Grogan

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