“Being a defence lawyer is a very hard job,” Prof. Stuart said at the time. “If you are already feeling strapped by your job and you hear someone as important as Michael Moldaver criticizing you, you can feel pretty hurt.”
Veteran defence lawyers Alan Gold and Frank Addario adopted a different stance. “The reason most defence counsel are insulted by Moldaver’s speech is that to he failed to identify the real cause of the problem,” they wrote in a newspaper column.
“He dismissed the chronic underfunding of the justice system as irrelevant. Yet, each year lawyers and judges are asked to produce the same high quality justice with less money.”
Since Crown conferences are not open to the public, what is much less known is that Judge Moldaver has also castigated prosecutors for stretching out trials unnecessarily by fighting hard for the admissibility of marginal evidence.
In a speech to judicial colleagues in 2006, Judge Moldaver vowed not to be deterred by a backlash to his campaign for a return to trial sanity.
“We can throw up our hands in despair and cry: ‘C’est la guerre,’ or, we can come together and say: ‘We are mad as hell and we are not going to take it any more,’” he said, in a copy of his speech obtained by the Globe and Mail.
On the Court of Appeal, he frequently sits on high profile or complex cases. Earlier this year, for example, he opted to deny doctors their wish to unilaterally pull the plug on a patient they deem beyond medical help.
He also played an instrumental role in two historic cases involving convicted killers Stephen Truscott and Romeo Phillion. Both men were found to have been wrongly convicted because of faulty evidence, prosecutorial overzealousness and police error.
Judge Moldaver’s tough-on-crime reputation is partly founded in his approach to punishment. Last year, for example, he drastically increasing the sentences of the a group of terrorists convicted under new anti-terrorism legislation.
More recently, he ratcheted up the sentence of a man convicted of luring a 12-year-old girl over the Internet, a welcome decision to the Harper government that created the law.
“The offence of luring carries very real dangers – innocent children being seduced and sexually assaulted or even worse, kidnapped, sexually abused and possibly killed,” Judge Moldaver said in the case, R v Woodward.
At the same time, however, Judge Moldaver sometimes opts for leniency in cases where individuals with no history of criminality make uncharacteristic errors of judgment.
In an important case last spring, for example, he took the position that mothers who kill their infants while in the grips of a mental disturbance deserve leniency instead of automatic life sentences for murder the Crown had sought.
In legal circles, there will be considerable shock that a front-runner for the job – Ontario Court of Appeal Judge Robert Sharpe – was not one of the nominees. A perception that he too often takes a tough line against the Crown may have been his undoing.
Married three times, Judge Moldaver graduated from the University of Toronto law school in 1971. He began practicing with Mr. Greenspan two years later and was appointed to the Supreme Court of Ontario in April 1990. He was elevated to the Ontario Court of Appeal in 1995.
A one-time co-chair of the Canadian Bar Association and a director of the Advocates’ Society, Judge Moldaver is well known in judicial and legal ranks. He has an abiding interest in judicial education and is in much demand at judicial seminars and Crown Attorney education sessions.
With a report from Jane Taber.