Courage under fire — five years at Supreme Court for Justice Moldaver

Law360 Canada (April 7, 2017, 9:57 AM EDT) -- After 44 years devoted to the criminal law, Supreme Court Justice Michael Moldaver still loses sleep over tough cases like R. v. Jordan — last year’s Charter blockbuster which aimed to speed up the sclerotic justice system but whose fallout led to the dismissal of some murder and child sexual assault charges.

“I would be inhuman if I wasn’t terribly sensitive to the pain that is being felt by families of victims to which you were referring,” observes Justice Moldaver in a rare interview granted to mark five years (and five months) at the highest court, where he is widely seen as the country’s leading voice on criminal law.

“All I can say is we’re dealing with a [court delay] problem that has been festering and growing for the past almost 30 years, and it was not going to be cured overnight, and it’s not going to be cured overnight with no pain,” explains Justice Moldaver, who co-wrote Jordan, 2016 SCC 27, with Justices Andromache Karakatsanis and Russell Brown. “But in the end, the hope is that we will end up with a better justice system, not just for accused persons, but for victims and families of victims, and society as a whole.”

These days the court remains under fire from Jordan critics, including some defence counsel, crime victims and media. Appellant’s counsel in Jordan, Eric Gottardi of Vancouver’s Peck and Company, says only time will tell whether the court’s robust new approach to the Charter’s s. 11(b) right to trial within a reasonable time will lead to a more efficient justice system. “But I think it is the product of a man who cares about the system and cares about protecting the confidence that the Canadian justice system has generally enjoyed with the public,” says Gottardi of Justice Moldaver. “I think it did take some courage to do that.”

Preserving Canadians’ confidence in their justice system could be seen as the credo of the prolific 69-year-old former Toronto criminal defence counsel and trial judge who has heard about 350 Supreme Court appeals so far, along with writing many of the top court’s criminal law judgments since he was appointed, including leading cases on the Charter rights to a speedy trial, bail, against self-incrimination and to a representative jury (see also below).

His 2011 transition from the Ontario Court of Appeal to a docket in Ottawa featuring (literally at times) life and death matters affecting “Canada and what we’re all about as Canadians” has been “very difficult,” Justice Moldaver candidly acknowledges. “It makes, in my case, for a lot of sleepless nights and tensions and anxieties that are pretty much constant.”

However the judge is guided by a clear vision. “If we were to ask what it is we expect from our criminal justice system there are four thoughts that come to mind,” he says. “First, I want a justice system that delivers quality justice in a timely and efficient fashion,” he observes. “We must guard against the criminal law becoming little more than an interminable game. We must strive to achieve a happy medium between process and truth and justice. ... When the balance is lost, our justice system suffers, and we run the risk of losing the confidence and respect of the people we have been chosen to serve.

“Second,” he continues, “I want a justice system in which the guilty are convicted, and the innocent, or those who may be innocent, are set free. Third, I want a justice system that is concerned about — not obsessed with — wrongful convictions and that takes reasonable steps to avoid them. And fourth, I want a justice system that is concerned about — not obsessed with — our becoming a police state and that takes reasonable steps to prevent this from happening.”

In pursuit of these goals, the judge has shown a willingness over the years to think outside the box, and to speak out, in a characteristically blunt and direct way, about serious justice system problems and solutions as he sees them. As an Ontario Court of Appeal judge, for example, he courted controversy when he suggested, in separate speeches to the defence bar, that there were too many unmeritorious Charter motions (which incensed many criminal lawyers), and nearly a decade earlier, that governments should provide some recompense to those “wrongfully accused” of crimes because “sometimes the person most victimized by the criminal process is the accused” (a bold suggestion coming in 1999 from a judge seen even then as a candidate for an impending Supreme Court vacancy).

True to form, at the Jordan hearing Justice Moldaver surprised the assembled counsel by raising the prospect of replacing the top court’s problematic formula for assessing Charter s. 11(b) excessive delay claims with a simpler scheme of prescribed presumptive time limits — an innovation the court later incorporated into its 5-4 judgment. Jordan’s broadside against the “culture of complacency” within the justice system was vintage Moldaver.

Christopher Speyer, a recently retired Ontario Superior Court judge who has known Justice Moldaver since they both presided over trials 28 years ago in Toronto, calls his friend “a brave judge.”  

“What I mean by that is he takes on issues where he thinks that the criminal law is deficient … like Jordan,” says the former defence counsel. “To somebody such as myself, who sat for long periods of time, there can be no doubt that some trials tended to encroach against eternity . . . And he said some important things in that judgment that really needed to be said, and it’s obviously drawn the attention … of politicians and trial judges and lawyers. How it all works out, that remains to be seen ... [but] the culture of delay was something that it was important to shine the klieg lights on. The system needed a wake-up call.”

Of the 54 judgments Justice Moldaver has authored so far, most for the court, many deal with contentious issues of police powers, privacy and the administration of justice.

Chanakya Sethi of Williams and Connolly LLP in Washington, D.C., who has been following the Supreme Court’s jurisprudence since he clerked there for Justice Moldaver in 2013, says the judge has been more willing to trust the good faith of the police than some of his colleagues, but “he’s not afraid to call a spade a spade when a line has been crossed. Whether on the scope of warrant powers in R. v. TELUS Communications Co. 2013 SCC 16, or the importance of independent investigations where a citizen has been injured by police in Wood v. Schaeffer 2013 SCC 71, or the admissibility of Mr. Big confessions in R. v. Hart 2014 SCC 52, in those cases he took positions that limited the scope of police powers more than some of his peers who are widely seen as more liberal,” says Sethi. “Overall, his track record shows that Justice Moldaver is not easily labelled.”

University of Ottawa criminal law professor Carissima Mathen describes Justice Moldaver as pragmatic, and “not at all ideological” in his judicial philosophy. “He tends to adopt a posture of restraint,” she notes. “In that respect, he does not have the approach generally shared by previous criminal law experts such as [former Supreme Court judges] Lamer, Dickson and Fish. He is more balanced between the accused’s rights and broader interests.”

Mathen disagrees with the judge’s lone dissent in Reference re Supreme Court Act, ss. 5 and 6 2014 SCC 21, where the court voted 6-1 to overturn Justice Marc Nadon’s elevation to the top court. But his minority opinion is a “tour de force that garnered significant support” within the legal community, she acknowledges.

“His minority opinion in R. v. A.D.H. 2013 SCC 28, [also] showed a detailed, exhaustive approach to statutory interpretation, carefully focused on Parliament’s intent,” said Mathen by e-mail.

Critics, including members of the defence bar, see many of the judge’s criminal law judgments (often expressing views endorsed by the court’s majority), as too conservative, i.e. overly deferential to government, too expansive of prosecutorial and police powers and insufficiently protective of Charter rights. Examples cited include his 6-3 dissent in R. v. Nur 2015 SCC 15, where he deplored as “far-fetched or only marginally imaginable” the majority’s “reasonable hypothetical” Charter reasoning used to strike down some Harper-era mandatory minimum sentences for illegal gun possession; and R. v. Saeed 2016 SCC 24, where he held, for the seven-judge majority, that warrantless compelled DNA swabbing of an accused’s penis incident to arrest during a sexual assault investigation, did not violate the man’s Charter’s s. 8 right to be free from unreasonable search and seizure.

Matthew Gourlay of Toronto’s Henein Hutchison says such decisions have to be balanced against rulings like Henry v. B.C. (A.G.) 2015 SCC 24, where the judge favoured an expanded role for civil compensation for people who have been wrongfully convicted as a result of Charter breaches.

“It’s too simplistic to characterize his jurisprudence as ‘pro-Crown/pro-defence’ or ‘pro-Charter/anti-Charter,’ ” suggests Gerald Chan of Toronto’s Stockwoods, author of the textbook Sentencing. Chan points to the court’s judgments by Justice Moldaver (and co-authors) that aim to hold police to a high standard of accountability (e.g. R. v. Tse 2012 SCC 16, insisting on police accountability in emergency wiretaps; Wood, emphasizing the importance of police note-taking; as well as his concurrence in TELUS warning of the dangers of subjecting police to less stringent oversight when acquiring text messages.)

“He also remains very alive to the problem of wrongful convictions and wrote a strong judgment in Hart, on the Mr. Big police technique and the danger that it will produce false confessions,” said Chan by e-mail.

Susan Reid, deputy director of appeals at the Ontario Crown law office-criminal, says the judge’s track record defies black and white labels like pro-defence or pro-Crown. “What defines his judgments is his commitment to achieving a just result,” she said, speaking personally, not for the Ontario Ministry of the Attorney General. “He has always been mindful of the practical realities of his judgments and how they will be applied in the real world.”

Queen's University law professor Donald Stuart says that Jordan and R. v. Oland 2017 SCC 17, Justice Moldaver’s recent 9-0 judgment on bail pending appeal, are salutary. “He does seem to be the leader in Charter jurisprudence in criminal law,” says Stuart. “I would say he’s extremely hardworking, and cares deeply about the criminal justice system.” At the same time, the editor-in-chief of the Criminal Reports objects to Justice Moldaver’s restrictive approach to excluding evidence under s. 24(2) of the Charter as a remedy for constitutional violations, as exemplified most recently in the judge’s dissent (backed by Justice Clément Gascon) in R. v. Paterson 2017 SCC 15. “I think he has sometimes a blind spot about the importance of a purposive approach to the Charter,” says Stuart.

“He was very strong in criticizing the majority view, and the majority were just accepting principles [the court] accepted before, so he does seem to want to change Charter standards, and substantially reduce them, and it seems to be both in respect of police conduct and prosecutorial conduct,” observes Stuart.

He views Justice Moldaver’s general approach in criminal cases as “pretty pragmatic, and in some of these areas, too pro-police and too pro-prosecutors.”

The judge has nudged the court “toward clearer, bright-line rules and presumptions, over its traditional fondness for fuzzier, more flexible, multi-factor standards” — as is illustrated by Jordan, says Sethi.

He sees two themes running through Justice Moldaver’s criminal law and Charter judgments. “First, he is not one to embrace grandly theorized visions of the law,” explains Sethi, citing Jordan, Wood and Hart as examples. “Rather, his focus is on translating Charter principles into clear, practical legal rules that will ultimately prove workable for judges and litigants. Second, he believes very deeply that not only must the judiciary ensure that justice is done, but that it is seen to be done. As a result, his opinions are notable for their emphasis — sometimes explicit, sometimes implicit — on how the average Canadian would view the issue and whether the rule adopted will help promote public trust in the system.”

Predictions that Justice Moldaver would consistently vote to narrow Charter protections have not proven factual, said Sethi by e-mail. “You don't see a lot of lone-man dissents or concurrences. Instead, he’s joined the unanimous court in cases like Canada (Attorney General) v. Bedford 2013 SCC 72 [striking down certain prostitution provisions] and Carter v. Canada (Attorney General) 2015 SCC 5 [striking down the prohibition on assisted suicide], and he's also been a leader in building consensus in other areas: Exhibit 1, of course, is his role in Jordan, where he's pushed a muscular view of 11(b).”

Gourlay says some judgments for the court impacting day-to-day criminal law practice, such as R. v. Anthony Cook 2016 SCC 43, on joint submissions on sentence, and R. v. Sekhon 2014 SCC 15, which takes a more stringent approach to the admission of police evidence as expert evidence, have been generally well received by the bar. He “likes to demystify the system and the law,” observes Gourlay. “He writes in a very straightforward manner that is easy to grasp, and I think is generally averse to legal mumbo-jumbo.”

Speyer notes that Justice Moldaver’s efforts to make the criminal law more understandable to Canadians go back decades. For example in the self-defence case of R. v. Pintar [1996] 20 OR (3d) 483, the then-Ontario Court of Appeal judge implored trial judges to make their jury addresses less technical and confusing for the jury. “That was a big, big deal,” recalls Speyer. “To me his great leadership is one of the reasons I think he is going to rank as one of the most eminent jurists in the last quarter-century.”

Milestones in Moldaver J.’s Supreme Court jurisprudence

• 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.
• 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.
• Henry v. British Columbia (Attorney General) 2015 SCC 24 — In greenlighting 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).
• R. v. Jordan 2016 SCC 27 — 5-4 judgment reinvigorated the s. 11(b) Charter right to trial within a reasonable time.
• 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. 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. Anthony-Cook 2016 SCC 43 — 7-0 judgment sets out the test trial judges should use in deciding whether to depart from joint sentencing submissions from the Crown and defence.
• R. v. Saeed 2016 SCC 24 — 7-2 judgment 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.
• Reference re Supreme Court Act, ss. 5 and 6 2014 SCC 21 — Dissent vigorously argued against the court’s 6-1 decision to void, as unconstitutional, Federal Court of Appeal Justice Marc Nadon’s 2013 appointment to the Supreme Court.
• 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 to strike down some Harper-era mandatory minimum sentences for illegal gun possession.

Photo of Justice Moldaver by: Andrew Balfour Photography. Copyright Supreme Court of Canada