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Supreme Court Justice Michael Moldaver to retire Sept. 1

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Home Constitutional Law

Supreme Court Justice Michael Moldaver to retire Sept. 1

'It has been an honour for me to be a member of this countryโ€™s highest court,' Moldaver says in statement.

February 24, 2022
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Supreme Court Justice Michael Moldaver to retire Sept. 1
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PHOTO: Supreme Court Justice Michael Moldaver will step down from Canada’s top court on Sept. 1, 2022.ย (Blair Gable/The Canadian Press)

  •   Cristin Schmitz, The Lawyer's Daily
  • February 24, 2022

Supreme Ontarioโ€™s Michael Moldaver โ€” recently described by Supreme Court of Canada Chief Justice Richard Wagner as โ€œone the best justicesโ€ the top court has had in its 147-year history โ€” 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 courtโ€™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 courtโ€™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 theย Nadonย case:ย Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21.

 Chief Justice of Canada Richard Wagner

Chief Justice of Canada Richard Wagner

In an interview this month with the Canadian Bar Associationโ€™s Yves Faguy, Chief Justice Richard Wagner had high praise for his colleague, stating that in his opinion, โ€œhe is one of the best justices the Supreme Court of Canada has ever had.โ€

The top judge described Justice Moldaver as โ€œone of the best criminal lawyers in Ontario, so he brought a great deal of experience and expertise โ€” both theoretical and practical โ€” 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.โ€

In the courtโ€™s official announcement, Chief Justice Wagner said โ€œJustice 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.โ€

Justice Moldaverโ€™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 โ€œpromptlyโ€ appoint Justice Moldaverโ€™s successor using a selection process the chief justice described as โ€œconsistent with the independence of the judiciary and reflects the fundamental values of openness, transparency and integrity.โ€

Justice Michael Moldaver

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 Canadiansโ€™ confidence in their justice system, to which end he labours hard to communicate clearly and understandably in his judgments. One of the courtโ€™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-authoredย R. v. Jordanย 2016 SCC 27), bail, against self-incrimination and to a representative jury (see also below).

The judge is guided by a clear vision. โ€œIf we were to ask what it is we expect from our criminal justice system there are four thoughts that come to mind,โ€ he toldย The Lawyerโ€™s Dailyย in a rare and exclusive interview to mark his five-year milestone at the high court.

โ€œFirst, I want a justice system that delivers quality justice in a timely and efficient fashion,โ€ he explained. โ€œWe 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.

โ€œSecond,โ€ he continued, โ€œI 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 โ€” not obsessed with โ€” wrongful convictions and that takes reasonable steps to avoid them. And fourth, I want a justice system that is concerned about โ€” not obsessed with โ€” our becoming a police state and that takes reasonable steps to prevent this from happening.โ€

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 โ€œwrongfully accusedโ€ of crimes because โ€œsometimes the person most victimized by the criminal process is the accusedโ€ (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 โ€œa brave judgeโ€: โ€œWhat I mean by that is he takes on issues where he thinks that the criminal law is deficient โ€ฆ likeย Jordan,โ€ Speyerย toldย The Lawyerโ€™s Dailyย in 2017. โ€œTo 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 itโ€™s obviously drawn the attention โ€ฆ 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.โ€

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 ofย R. v. Pintarย [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. โ€œThat was a big, big deal,โ€ Speyer recalled. โ€œTo 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.โ€

Milestones in Justice Moldaverโ€™s jurisprudence include:

  • R. v. Tseย 2012 SCC 16โ€” 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. Nedelcuย 2012 SCC 59โ€” 6-3 judgment more narrowly interprets the scope of the protection for prior compelled testimony provided by the Charterโ€™s s. 13 guarantee against self-incrimination.
  • R. v. Yumnuย 2012 SCC 73โ€” 9-0 judgment dismissed defence appeals relating to jury vetting on the basis that although aspects of the Crownโ€™s conduct were improper, in the circumstances, the accused received a fair trial by an impartial jury.
  • R. v. Kokopenaceย 2015 SCC 28โ€” 5-2 judgment held that accusedโ€™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)ย 2015 SCC 24โ€” 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. Jordanย 2016 SCC 27โ€” 5-4 judgment reinvigorated the s. 11(b) Charter right to trial within a reasonable time.
  • R. v. Olandย 2017 SCC 17โ€” Leading case on bail pending appeal allowed 9-0 a defence appeal by a person convicted of murder who was denied bail.
  • R. v. Hartย 2014 SCC 52โ€” 7-0 judgment created a new common law rule of evidence that confessions emanating from Mr. Big scenarios are โ€œpresumptively inadmissibleโ€ because of: serious concerns about their reliability and the danger of eliciting false confessions; the prejudicial effect of the evidence of the accusedโ€™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-Cookย 2016 SCC 43โ€” 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. Saeedย 2016 SCC 24โ€” 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 6ย 2014 SCC 21โ€” Dissent vigorously argued against the courtโ€™s 6-1 decision to void, as unconstitutional, Federal Court of Appeal Justice Marc Nadonโ€™s 2013 appointment to the Supreme Court.
  • R. v. Rodgersonย 2015 SCC 38โ€” 5-0 judgment provided guidance to trial judges on jury addresses with respect to circumstantial evidence of post-offence conduct.
  • R. v. Nurย 2015 SCC 15โ€” 6-3 dissent slams as far-fetched and contrary to common sense the โ€œreasonable hypotheticalโ€ 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

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