Supreme Court Justice Michael Moldaver to retire Sept. 1

Supreme Ontario’s Michael Moldaver — recently described by Supreme Court of Canada Chief Justice Richard Wagner as “one the best justices” the top court has had in its 147-year history — will step down effective Sept. 1, 2022, the Supreme Court of Canada announced Feb. 24, 2022.

The impending retirement of the former star Toronto defence counsel and ex-Ontario Court of Appeal judge was not unexpected because he turns age 75 in December.

Justice Moldaver, the court’s most experienced criminal law judge, worked his way up from the trial level to the Ontario Court of Appeal to the Supreme Court in 2011, and has done much of the apex court’s heavy lifting in criminal law during his nearly 11 years there, but has also written noteworthy commercial and non-criminal law rulings, including a historic lone dissent in the Nadon case: Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21.

Chief Justice of Canada Richard Wagner

In an interview this month with the Canadian Bar Association’s Yves Faguy, Chief Justice Richard Wagner had high praise for his colleague, stating that in his opinion, “he is one of the best justices the Supreme Court of Canada has ever had.”

The top judge described Justice Moldaver as “one of the best criminal lawyers in Ontario, so he brought a great deal of experience and expertise — both theoretical and practical — to the court. He made his mark here at the court, as the author of criminal law decisions that will be cited as references for many years to come, and in other areas of law. Justice Moldaver has always been a strong presence on the bench in matters of commercial law, for instance. He is one of the judges who asks the most questions. He’s curious. He leads discussions and arguments. And his insights are always relevant. I’ve always appreciated that. He’s also an exceptionally collegial colleague, very respectful. In my opinion, he is one of the best justices the Supreme Court of Canada has ever had.”

In the court’s official announcement, Chief Justice Wagner said “Justice Moldaver has made exceptional contributions to Canadian jurisprudence, particularly in the area of criminal law. Canadians have benefited from his humanity and deep commitment to fair and just results. His colleagues and I have profited from his wisdom, warm collegiality and wit.”

Justice Moldaver’s successor will come from Ontario, as he sits in one of the three seats reserved for that province.

Chief Justice Wagner said he was confident that the government will “promptly” appoint Justice Moldaver’s successor using a selection process the chief justice described as “consistent with the independence of the judiciary and reflects the fundamental values of openness, transparency and integrity.”

Justice Michael Moldaver

Justice Moldaver next year marks 50 years in the criminal law trenches, having started as a defence counsel in 1973.

As a judge, his abiding concern is preserving Canadians’ confidence in their justice system, to which end he labours hard to communicate clearly and understandably in his judgments. One of the court’s best writers, he has sat on hundreds of appeals, penning many criminal law judgments, including leading cases on the Charter rights to a speedy trial (e.g. he co-authored R. v. Jordan 2016 SCC 27), bail, against self-incrimination and to a representative jury (see also below).

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 told The Lawyer’s Daily in a rare and exclusive interview to mark his five-year milestone at the high court.

“First, I want a justice system that delivers quality justice in a timely and efficient fashion,” he explained. “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 continued, “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 those goals, Justice Moldaver has demonstrated a willingness over the years to think outside the box, and to speak out, in a characteristically clear and direct way, about serious justice system problems and solutions as he saw 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).

Retired Ontario Superior Court judge Christopher Speyer, who knew Justice Moldaver dating back to when they both presided over trials in Toronto, has called 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,” Speyer told The Lawyer’s Daily in 2017. “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.”

Speyer also pointed out that that Justice Moldaver consistently worked over the decades to make the criminal law more understandable to Canadians and to the bench and bar. 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,” Speyer recalled. “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 Justice Moldaver’s jurisprudence include:

• R. v. Tse 2012 SCC 16— Unanimous ruling co-written with Justice Andromache Karakatsanis struck downtheemergency wiretap power in s. 184.4 of theCriminal Codebecause ofthelack 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 Chief Justice of Canada Richard Wagner by Roy Grogan
Photo of Justice Michael Moldaver by Jessica Deeks