Drastically reducing the number of criminal prosecutions it handles would enable the justice system to work more efficiently and effectively, while also trying, within constitutional time limits, the remaining 10 (or more) per cent of criminal cases, which are the most serious and may require complex and time-consuming proceedings, such as charges of murder, sexual assault, terrorism, organized crime, human trafficking and serious fraud and serious drug offences, Moldaver told The Lawyer’s Daily in a rare interview to mark his Sept. 1 retirement from the Supreme Court of Canada.
(For Justice Moldaver’s reflections on his 11 years as the top court’s unrivalled leader on criminal law, see part 2 of The Lawyer’s Daily's exclusive interview.)
“I think we have to come to grips with the fact that the criminal justice system is not a panacea — it’s not a cure for the ills of society,” said Moldaver, whose opinion that the criminal justice system can’t do everything it is now tasked with is shared by many senior judges and lawyers.
“It’s a blunt instrument, and it should be reserved, in my respectful view, for the ... 10 per cent of the cases that are really serious and have to be prosecuted with vigour — and that would involve removing, as much as possible, from the criminal justice system, a whole lot of offences,” the former criminal defence counsel advised.
He suggested many lower-level prosecutions could be handled differently but fairly, via ticketing or diversion, for example. This might include minor drug cases, minor thefts, minor assaults and minor administration of justice offences.
Making greater use of administrative programs, e.g. the immediate roadside prohibition schemes adopted in several western provinces, could also help, said Moldaver, noting that drinking and driving prosecutions are a significant portion of provincial courts’ dockets.
Newly retired Supreme Court of Canada justice Michael Moldaver.The hope is that by diverting people out of the system, “it creates room for other cases,” he explained. This would enable the often under-resourced justice system to focus “the full weight of the criminal law” on the most serious prosecutions — with the complexity and resource requirements those cases entail.
Moldaver noted that, in the wake of the Charter, a murder case that might have taken seven to 10 days to complete when he began practising criminal law in Toronto in the mid-1970s, can now take seven weeks, or seven months (or more).
This has knock-on effects on the civil justice system as criminal cases take up scarce court time. The resulting delays have pushed even some who could otherwise afford to litigate in court to seek faster dispute resolution in the private sector.
(The challenge of criminal justice complexity and delays was also highlighted in 2017 by then-Chief Justice of Canada Beverley McLachlin, who noted some progress toward the dual goals of Charter compliance and effective justice, but urged “we have more work to do.”)
If the criminal justice system’s shortcomings aren’t addressed, “I think we will lose the faith and confidence of the public” in the justice system, Moldaver said, citing Chief Justice of Canada Antonio Lamer’s observations in the mid-1990s that “some trials are so long that one wonders whether the process will not collapse under its own weight.”
At that time, Chief Justice Lamer predicted “our greatest challenge over the next several years will be to cope with complexity and prolixity in criminal proceedings. We must find ways to retain a fair process, but in the context of a process that can achieve practical results in a reasonable time and at a reasonable expense. If ways to do this cannot be found, I fear that our legal system will become simply irrelevant for most purposes.”
“I’m no more of a prophet than the late chief justice was,” Moldaver observed. “But he talked in very serious terms … and we have not heeded his advice. We have not dealt with his concerns.”
“In fact I think things are worse,” said Moldaver, who practised criminal law for 17 years, before joining the bench in 1990.
“Trials are prolix, and they are filled with complexity ... and, frankly, I don't see it getting better at all. I see that the complexities continue, and the length of trials, as a result, are continuing,” said the former trial and Ontario Court of Appeal judge, who dedicated himself to clarifying the law, in understandable terms, for juries, trial judges, lawyers and the public.
Moldaver, co-author of R. v. Jordan, 2016 SCC 27, the landmark majority judgment which created presumptive time caps for trial delay, has been the Supreme Court of Canada’s expert, and leading voice, on criminal law over the past 11 years. (See some of his milestone judgments below.)
His off-the-bench views on criminal law reform may carry additional weight, given the high esteem in which he is held by both judicial and political leaders. Federal Justice Minister David Lametti recently thanked the retired judge for his “monumental” contributions to the Supreme Court, Canadian jurisprudence and “our justice system.”
The thrust of Moldaver’s remarks also aligns with an emerging trend in Canadian criminal justice policy reform that has growing momentum.
“Justice Moldaver is raising important issues,” Lametti’s press secretary, Chantalle Aubertin, told The Lawyer’s Daily.
“We agree with his view that Canadians who pose no risk to public safety would be better served through more appropriate support and treatment, rather than through the criminal justice system,” Aubertin said via e-mail.
Lametti’s spokesperson pointed out that the incumbent Liberal government has been moving away from what she called the previous Conservative government’s “failed and discredited,” tough-on-crime, criminal justice policies “that have not made our communities safer, but have instead filled up our prisons with too many lower-risk and first-time offenders — disproportionately those from Black and Indigenous communities.”
She pointed to Bill C-5 (now in the Senate) as one example of Criminal Code amendments that “will help with those concerns by restoring greater access to community-based conditional sentences,” and by removing 21 mandatory minimum penalties that “are a major factor in clogging up the criminal justice system.”
Moldaver emphasized he doesn’t have, nor is he claiming to have, clear answers to all the problems plaguing the criminal justice system. “There are complexities here,” he stressed.
But if there is to be “major surgery” on the Criminal Code and needed changes within the justice system, it will require “huge commitment,” as well as political will, he acknowledged.
As he sees it, one problem is that the criminal justice system presently, “to a large extent, functions on fear.”
To address this, Moldaver suggested Crowns need sufficient discretion to weed out charges, whether by withdrawing them if there is little prospect of conviction, or accepting all reasonable offers from defence counsel in exchange for guilty pleas.
Accordingly, Crowns need backup from their bosses (including the attorneys general), particularly in cases attracting public and media scrutiny, he suggested.
“Crowns are afraid to make tough decisions for fear that they will be hung out to dry and not supported by the higher ups,” Moldaver suggested. “From the Crown’s perspective, it seems to me that there are so many interest groups out there that are watching their every move … and it seems to me that they have to know that they’re going to be defended from on high if they make tough calls ....in the interests, from their perspective, of justice, as opposed to being tarred and feathered, if things go wrong, and somebody’s acquitted.”
Defensive lawyering also affects some criminal lawyers, particularly inexperienced counsel facing the possibility of making multiple Charter claims — some, or most of, which appear to stand little chance of success. “I think a lot of the defence bar, and I say this with great respect to them, are worried or frightened of being on the wrong end of an ‘ineffective assistance of counsel’ argument at the Court of Appeal, if they don’t bring matters, that really ought to be kept [out] ... before the court,” Moldaver suggested.
Trial judges sometimes are also “running scared” when it comes to making tough calls, and engaging in vigorous and responsible case management. They question their ability, at times, to finish a trial without committing reversible error, given the burgeoning complexity and prolixity of criminal law. “The reality is, if you’ve got 10 pretrial motions in front of you as a trial judge, you can get nine of them right, and you could get the 10th one wrong, and suddenly a six-week, or six-month, trial goes down the drain,” Moldaver explained. “And I really do believe that trial judges, and ... I don’t say this badly, they’re trying to be realistic ... they do not want to take a risk that the Court of Appeal will say ‘You should not have done that.’ And then suddenly you have a whole new six-week or six-month trial on your hands, thrown into a justice system that’s already bursting at the seams.”
Courts of appeal too frequently find themselves in the position of “having to put square pegs into round holes,” in order to avoid sparking a surge of new trials that could overwhelm an already overburdened justice system, he said.
Canada has a “wonderful justice system” as compared to many others, but it has its problems and, “we cannot take it for granted,” he stressed.
“I think we have to be extremely careful,” he advised, noting that, like other government branches, courts “are not impervious” to a public that could get quite angry “and rise up against the institution.”
Last May, in a speech to judges on the state of the Canadian justice system, Moldaver said that “unless and until we can find a way to rid our criminal justice system of the complexities that plague it, if we have any chance of dealing with the heavy cases that warrant the full weight of the criminal law, we must rid the system of that huge mass of cases that have little or no business being part of it.”
Calling it “our greatest challenge going forward”, Moldaver urged that “we must all work collectively, in a spirit of co-operation, to bring it about. If we fail to take up that challenge, I fear that our criminal justice system will eventually collapse under its own weight and, in the words of Chief Justice Lamer, become simply irrelevant for most purposes.”
Milestone Moldaver criminal law decisions since 2012
R. v. J.J., 2022 SCC 28. Co-wrote with Chief Justice Richard Wagner the court’s lead judgment in a 6-3 ruling that 2018 Criminal Code changes to the screening regime for determining the admissibility of complainants’ private records in sexual assault trials — notably with respect to private records in the hands of the defence (anything from medical or psychiatric records to e-mail and text exchanges with the accused) — do not violate an accused’s fair trial or other constitutionally protected rights.
R. v. Samaniego, 2022 SCC 9. 6-3 majority ruling is the leading authority on trial management powers and their intersection with, and constraint by, the rules of evidence.
R. v. Stairs, 2022 SCC 11. A person’s home still is their “castle”, Justice Moldaver and co-author Justice Mahmud Jamal affirmed in the Supreme Court’s first articulation of a new higher standard for safety searches incident to arrest inside a residence.
R. v. Parranto, 2021 SCC 46. Backed by Justice Suzanne Côté, he loudly rang alarm bells about fentanyl’s grave harms to individuals, families and society, urging tougher penalties for large-scale fentanyl trafficking.
R. v. Barton, 2019 SCC 33. Blockbuster 4-3 majority judgment clarified the law of sexual assault, addressing: rape myths, stereotypical and prejudicial assumptions about Indigenous women working in the sex trade, jury charges, consent, as well as the use of the rape shield and other thorny legal issues.
R. v. Stillman, 2019 SCC 40, overturned 5-2 a Court Martial Appeal Court Charter ruling that would have gutted the court martial system in a majority judgment, co-written by Justice Russell Brown, that military members charged under the National Defence Act for serious criminal offences committed in Canada do not have the right to a jury trial.
R. v. Morrison, 2019 SCC 15. The Supreme Court’s unanimous and first constitutional pronouncement on the crime of child luring.
R. v. Paterson, 2017 SCC 15. Dissent, backed by Justice Clément Gascon, argued against excluding crucial and reliable real evidence — i.e. seized guns and drugs — under s. 24(2) of the Charter as a remedy for non-bad-faith police constitutional violations that occurred during a warrantless drugs search in a residence.
India v. Badesha, 2017 SCC 44. 9-0 decision sets out evidentiary and legal standards applicable in extradition cases and judicial reviews of Ottawa’s decisions to surrender Canadians to foreign states for criminal prosecution.
R. v. Oland, 2017 SCC 17. Leading case on bail pending appeal, allowed 9-0 a defence appeal by a person convicted of murder who was denied bail.
R. v. Anthony-Cook, 2016 SCC 43. 7-0 judgment established the test trial judges should use in deciding whether to depart from joint Crown-defence sentencing submissions.
R. v. Jordan, 2016 SCC 27. Co-authored the 5-4 landmark that reinvigorated the s. 11(b) Charter right to trial within a reasonable time via presumptive time caps. Also on s. 11(b), R. v. K.J.M., 2019 SCC 55, which 6-3 declined to impose lower time caps on trial delays in youth court, and R. v. K.G.K. 2020 SCC 7, which set a high threshold for successful defence claims that a judge breached s. 11(b) by unduly delaying the verdict.
R. v. Saeed, 2016 SCC 24. 7-2 decision expanded the common law power to conduct searches incident to arrest to encompass police compelling (under threat of force) penile swabbing of sexual assault suspects, in some circumstances.
R. v. Rodgerson, 2015 SCC 38. 5-0 judgment provided guidance to trial judges on jury addresses with respect to circumstantial evidence of post-offence conduct.
R. v. Nur, 2015 SCC 15. 6-3 dissent slams, as far-fetched and contrary to common sense, the “reasonable hypothetical” Charter reasoning used by the court to strike down some Harper-era mandatory minimum sentences for illegal gun possession.
R. v. Kokopenace, 2015 SCC 28. 5-2 judgment held that accused’s constitutional right to a representative jury did not require Ontario to compile a jury roll that proportionately represented Indigenous on-reserve residents in the northern district of Kenora.
R. v. Hart, 2014 SCC 52. 7-0 judgment created a new common law rule of evidence that confessions emanating from Mr. Big scenarios are “presumptively inadmissible” because of: serious concerns about their reliability and the danger of eliciting false confessions; the prejudicial effect of the evidence of the accused’s bad character that emerges during the sting; and the risks that police will engage in their own misconduct during Mr. Big operations.
R. v. Tse, 2012 SCC 16. Unanimous ruling, co-written with Justice Andromache Karakatsanis, struck down the emergency wiretap power in s. 184.4 of the Criminal Code because of the lack of police oversight or any requirement to notify people who are targets of the wiretaps.
R. v. Nedelcu, 2012 SCC 59. 6-3 judgment more narrowly interprets the scope of the protection for prior compelled testimony provided by the Charter’s s. 13 guarantee against self-incrimination.
R. v. Yumnu, 2012 SCC 73. 9-0 judgment dismissed defence appeals relating to jury vetting on the basis that, although aspects of the Crown’s conduct were improper, in the circumstances the accused received a fair trial by an impartial jury. Other key jury- related decisions were: R. v. Chouhan, 2021 SCC 26, upheld 7-2 the constitutionality of the abolition of peremptory challenges, and R. v. Esseghaier 2021 SCC 9, co-written with Justice Brown, which held that jury selection errors can be remedied if certain requirements are met.
Photo of Justice Moldaver by Roy Grogan
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