Judicial Biography: Justice Michael J. Moldaver

Post 3/9 in TheCourt.ca’s Judicial Biography Series (Fall 2019).

If we were to ask what it is we expect from our criminal justice system there are four thoughts that come to mind. … First, I want a justice system that delivers quality justice in a timely and efficient fashion. … Second, 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. (Justice Michael J. Moldaver, 2017)

Appointed to the Supreme Court of Canada (the “SCC” or the “Court”) in 2011, Justice Michael J. Moldaver is one of Canada’s leading voices on criminal law. Since his appointment to the SCC, Justice Moldaver has written many of the Court’s leading criminal law judgments, including on the right to be secure against unreasonable search and seizure, the right against self-incrimination, and the right to a representative jury. His influence on the Canadian legal system and particularly the Canadian criminal justice system is unparalleled.

This post offers a biographical glimpse into Justice Moldaver’s outstanding legal career, shedding light on one of the nine judges who oversees Canada’s highest court.

Biography

Born in 1947, Justice Moldaver was raised in Peterborough, Ontario. He attended elementary school at Queen Mary Public School, high school at Peterborough Collegiate, and completed his post-secondary studies at the University of Toronto, where he earned a Bachelor of Arts in 1968 and a Bachelor of Laws in 1971 (Gold Medalist).

Upon graduating from law school, Justice Moldaver began his articles in Toronto with the law firm of Thomson Rogers, but finished the last six months of his articles with Goldwyn Arthur Martin, a leading criminal defence lawyer. Justice Moldaver was called to the Ontario Bar in 1973.

Justice Moldaver began his career as a criminal practitioner at the law firm of Pomerant, Pomerant and Greenspan (later Greenspan, Gold and Moldaver), where he became a partner in 1975, less than two years after he began. In 1985, Justice Moldaver was appointed Queen’s Counsel, and he left Greenspan, Gold and Moldaver to practice as a sole practitioner. In 1988, Justice Moldaver joined the law firm of Goodman and Goodman, where he spent the rest of his career as a criminal practitioner. Over his career as a criminal practitioner, Justice Moldaver appeared before courts of every level, including the Ontario Superior Court of Justice, Court of Appeal for Ontario, and the Supreme Court of Canada.

In 1990, Justice Moldaver was appointed to the High Court of Justice of the Supreme Court of Ontario (now known as the Ontario Superior Court of Justice) at the age of 42. In 1995, five years later, he was appointed to the Court of Appeal for Ontario where he sat on the bench for sixteen years before his appointment to the Supreme Court of Canada in 2011.

Over his career, Justice Moldaver has played an active role in the legal community. While a criminal practitioner, Justice Moldaver was a co-chair of the Canadian Bar Association, a director of the Criminal Lawyers’ Association, a director of the Advocates’ Society, and a co-chair of the University of Toronto Academic Discipline Tribunal. Justice Moldaver also co-chaired the 1989 and 1990 Advocacy Symposiums. 

In addition, Justice Moldaver has also been actively involved in legal education. From 1975 to 1995, Justice Moldaver co-taught criminal law classes at Osgoode Hall Law School and the University of Toronto. Although he has left teaching behind, he continues to sponsor student awards at the University of Toronto and to volunteer as a guest judge on panels for various national law school moot competitions, including the Wilson Moot and the Davies Corporate/Securities Moot. Justice Moldaver has also acted a speaker and instructor for numerous continuing legal education programs, both for lawyers and the judiciary. Justice Moldaver is also an Honorary Fellow of the American College of Trial Lawyers.

Overview of Leading Decisions

Since his appointment to the bench, Justice Moldaver has authored judgments on a wide spectrum of legal topics. Despite these contributions, Justice Moldaver is best known for his expertise in both criminal law and the Canadian Charter of Rights and Freedom [Charter], and many of his most notable judgments arise from these areas. In this post, I focus on two of Justice Moldaver’s leading criminal law judgments. 

R. v. Hart, 2014 SCC 52[Hart]

In Hart, the SCC established a new two-pronged test for determining the admissibility of confessions obtained through a Mr. Big operation, a procedure whereby an undercover police officer induces a confession as proof of an accused’s loyalty to a fictitious criminal organization.

In Hart, H’s twin daughters drowned on August 4, 2002. While the police suspected that H was responsible for their deaths, they lacked evidence to charge him. As a result, two years after the drowning, undercover police officers began a Mr. Big operation by recruiting H into a fictitious criminal organization. At the time, H was unemployed and socially isolated. Over the next four months, the undercover police officers developed a close relationship with H, and H was provided many financial rewards for the work he did for the criminal organization. During this time, H made 3 confessions to drowning his daughters: (1) to an undercover police officer during a casual dinner; (2) to Mr. Big, the man purportedly at the helm of the criminal organization, when Mr. Big questioned him about the death of his daughters; and (3) to an undercover police officer when he re-enacted how his daughters were drowned at the park where the drowning occurred. At issue was whether H’s statements should have been admitted.

Justice Moldaver, writing for the majority, recognized that although the Mr. Big technique had been an effective investigative tool, the technique came with danger of unreliable confessions, prejudicial risk, and risk of police misconduct. He recognized a need to “achieve a just balance – one which guards against the risk of wrongful convictions that stem from false confessions but which ensures the police are not deprives of the opportunity to use their skill and ingenuity in solving serious crimes” (Hart, para 3).

Justice Moldaver acknowledged that although under existing law defence counsel had two options for challenging the admissibility of Mr. Big confessions (under the doctrine of abuse of process or under a trial judge’s discretion to exclude evidence that is more prejudicial than probative), there was no case in which a Mr. Big confession was excluded as an abuse of process and only one case where a Mr. Big confession was excluded on the basis that its prejudicial effect exceeded its probative value. In his view, the law as it stood “provide[d] insufficient protection to accused persons who confess during Mr. Big operations” (Hart, para 67).

In response to this lacuna, Justice Moldaver devised a two-pronged test that addresses the concerns of reliability, prejudice, and police misconduct raised by Mr. Big operations, and attempts to balance these dangers with ensuring that police have the tools they need to investigate serious crime.

Under the first prong of the test, where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him/her, any confession made by the accused during the operation is treated as presumptively inadmissibility. This presumption of inadmissibility is only overcome when the Crown, not the accused, can establish on a balance of probabilities that the probative value of the confession outweighs the prejudicial effect. Under the second prong, the doctrine of abuse of process is relied on to address the problem of police misconduct. Abuse of process must be demonstrated by the accused, and if so established, the trial judge has wide discretion to issue a remedy to preserve the integrity of the justice system or the fairness of the trial.

Applying this new two-pronged test, Justice Moldaver concluded that none of the three confessions met the first prong of the test: they were unreliable (i.e. the confessions contained international inconsistencies and lacked any confirmatory evidence), carried an obvious potential for prejudice, and the financial and social inducements provided to H presented the accused with an overwhelming incentive to confess, regardless of the truth of that confession.

Justice Moldaver’s decision in Hartis notable because it illuminates his disposition as a jurist, particularly the importance of striking a balance between truth and justice. As Justice Moldaver noted: “The purposes of this two-pronged approach are to protect an accused’s right to a fair trial under the Charter, and to preserve the integrity of the justice system. Those are the ends that must ultimately be achieved” (Hart, para 87). Justice Moldaver is committed to achieving a just result, yet is duly cautious, approaching the law in a manner that is mindful of the practical realities of the law and how law is actually operationalized in practice, especially the power imbalance between the individual and the state (i.e. the police).

R. v. Jordan, 2016 SCC 27[Jordan]

In Jordan, the SCC established a new robust approach to the Charter’s s. 11(b) right to a trial within a reasonable trial.

J was charged in December 2008 for his role in a dial-a-dope drug dealer operation. J’s trial ended in February 2013, 49.5 months after the charges were initially laid. J brought an application under s. 11(b) of the Charterseeking a stay of proceedings.

Justice Moldaver, writing for the majority with Justice Karakatsanis and Justice Brown, allowed J’s appeal, finding that J’s s. 11(b) right to a trial within a reasonable time was infringed. The majority set aside his convictions and entered a stay of proceedings. Importantly, Justices Moldaver, Karakatsanis and Brown established a new framework for applying s. 11(b), which can be summarized as follows:

• Delay beyond certain ceilings becomes presumptively unreasonable. For cases tried in the provincial court, this ceiling is 18 months. For cases tried in the superior court (or cases tried in the provincial court after a preliminary inquiry), this ceiling is 30 months.
• Once the presumptive ceiling is exceeded, the Crown has the burden of rebutting the presumption of unreasonableness on the basis of exceptional circumstances (e.g. circumstances that were reasonably unforeseen or reasonably unavoidable), otherwise, a stay will follow.
• Defence may show a delay belowthe presumptive ceiling is unreasonable, but they must establish that they took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and that the case took longer than it reasonably should have.

The Jordan framework replaced the pre-existing framework established by Morin. Justices Moldaver, Karakatsanis, and Brown found that Morin framework had several doctrinal shortcomings that contributed to problems in operationalizing the doctrine in practice. In particular, the Morin framework created a “culture of complacency” where “[u]nnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay” (Jordan, para 40). Not only does this culture of complacency reward the wrong behaviour, but it also frustrates the well-intentioned, makes frequent users of the criminal justice system cynical and disillusioned, and frustrates the rehabilitative goals of the system (Jordan, para 40). Moreover, the right to be tried within a reasonable time is central to the administration of Canada’s justice system. Unreasonable delay denies justice to the accused, victims and their families, and undermines public confidence in the administration of justice.

The new Jordan framework of presumptive ceilings: (1) creates a prospective perspective where all participants in the criminal justice system would know in advance the bounds of reasonableness so proactive measures can be taken to remedy any delay; (2) resolves difficulties in the Morin framework surrounding the concept of prejudice; (3) reduces the need to engage in complicated micro-counting; (4) helps facilitate a much-needed shift in culture, creates incentives for both sides, and enhances accountability by fostering proactive, preventative problem-solving; (5) encourages defence to be a part of the solution; and (6) makes courts more accountable. As the majority in Jordansummarized: 

Real change will require the efforts and coordination of all participants in the criminal justice system. 

For Crown counsel, this means making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently. It may also require enhanced Crown discretion for resolving individual cases. For defence counsel, this means actively advancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently. Both parties should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance.

For the courts, this means implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials.

For provincial legislatures and Parliament, this may mean taking a fresh look at rules, procedures, and other areas of the criminal law to ensure that they are more conducive to timely justice and that the criminal process focusses on what is truly necessary to a fair trial. Legal Aid has a role to play in securing the participation of experienced defence counsel, particularly for long, complex trials. And Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations. Government will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced.

Thus, broader structural and procedural changes, in addition to day-to-day efforts, are required to maintain the public’s confidence by delivering justice in a timely manner. Timely trials are possible. More than that, they are constitutionally required. (Jordan, paras 137–141)

Justice Moldaver’s majority decision in Jordan is very much like his decision in Hart, although it is grounded in different principles. Jordan stresses the importance of a working justice system for all: the accused, victims, and their families, and the public. It seeks to translate a complicated Charter right into a series of clear, practical rules that are workable for litigants, courts, and legislatures. Jordan recognizes that a working criminal justice system requires cooperation and efforts from all participants, and the majority rightly recognizes the role all stakeholders can play in delivering on the promise of justice.

Conclusion

It is difficult to capture the full range of Justice Moldaver’s contribution to Canadian jurisprudence, and in particular the Canadian criminal justice system. In a 2017 interview with The Lawyer’s Daily, Justice Moldaver remarked:

If we were to ask what it is we expect from our criminal justice system there are four thoughts that come to mind. … First, I want a justice system that delivers quality justice in a timely and efficient fashion. … 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, 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.

Indeed, if we look at Hart, Jordan and all of Justice Moldaver’s criminal law judgments from this lens we can see a wholehearted attempt to meet one, if not more, of these objectives.

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