He liked to describe himself as “a kid from Peterborough who got lucky.” But behind the Everyman persona of Justice Michael Moldaver is a University of Toronto law-school gold medalist who spearheaded the Supreme Court of Canada’s push to rid the criminal-justice system of delay, and to make sexual-assault trials easier on complainants.
Justice Moldaver, who retired on Sept. 1 at age 74, wore his heart on his sleeve, and put his stamp on the law.
In hearings, he was the court’s most outspoken and passionate defender of female complainants [alleged victims] in sexual-assault cases, and its rulings in the #MeToo era bear his imprint. Thirty-seven consecutive sexual-assault cases have been decided in favour of the prosecution at the Supreme Court, stretching back four-and-a-half years, and Justice Moldaver wrote some of the most important decisions.
In his view, myths and stereotypes still pervade sexual-assault trials. “Cross-examine on credibility all day long,” he told a criminal-defence lawyer in a hearing last fall, “but don’t get into things that raise the kind of myths we’re talking about: ‘You went to see a therapist … therefore your credibility is not worth very much.’ ‘You wrote some kind of love notes to the accused after the event. If you were really sexually assaulted, that would never have happened’ – a myth.”
“We’re already not allowed to do that,” the lawyer, Rebecca McConchie of Vancouver, replied.
Justice Moldaver fired back: “You may not be allowed to do that but … it’s been a huge problem and it’s still a problem in courtrooms across this country.”
The exchange was classic Justice Moldaver, focused on pragmatic and practical concerns, his sympathies made clear.
“I am not a scholar,” he said in an e-mail to The Globe and Mail, summing himself up. What he brought to his role, he said, was “a basic understanding of the human condition and what human beings are all about.”
Canada’s Supreme Court is losing a criminal law expert. With Trudeau’s next pick for the highest court, who can fill in the gap?
Justice Moldaver, a married father of two daughters, both of them lawyers, says his values came from his small-town upbringing in Peterborough, Ont. His father was a scrap metal dealer, his homemaker mother the daughter of the city’s first rabbi. Not only did they leave the front door of the house unlocked, his father kept the car keys in the ignition. During summers, he worked on a road crew, where he said he learned more about how to deal with juries than he did in law school.
The junk dealer’s son became a pivotal figure on a court for which criminal law makes up half or more of the appeals it hears. And more and more of those in the past few years have involved sexual-assault cases.
Consider the biggest expansion in 20 years to the federal law that shields rape victims from inappropriate questions. Four years ago, the Liberal government enlarged privacy protections for sexual-assault complainants. An accused who possessed e-mails, texts or other documents from the complainant was now required by law to go before a judge in a special hearing and ask for permission to use them as evidence in a trial. Defence lawyers challenged the new law, arguing it forced them to give away their strategy to the prosecution, and allowed the complainant to be forewarned of tough questions.
When the court endorsed the changes by a count of 6-3 in June, in a case called J.J., Justice Moldaver co-wrote the majority ruling with Chief Justice Richard Wagner.
“The criminal trial process can be invasive, humiliating, and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system,” they wrote.
They even added an unusual appeal to government: “More needs to be done.”
John Laskin, a retired judge who sat alongside Justice Moldaver on the Ontario Court of Appeal, said that sitting on so many criminal appeals, “You read about a lot of bad stuff going on in our society. You cannot help but be affected by it. And Justice Moldaver always had great concern and compassion for the victims of crime, especially women and children who had been sexually abused.”
Long before he joined the Supreme Court, Justice Moldaver was a criminal-defence lawyer who articled for the legendary G. Arthur Martin and worked with luminaries Eddie Greenspan, Alan Gold and Marc Rosenberg.
His background in criminal defence, and then as a trial judge for nearly six years, gave him an insider’s understanding of the system’s flaws. Delay was a pet topic: As an appeal court judge he gave speeches calling it a “cancer,” and the system a “disgrace” – and while he said the responsibility was a collective one, he accused criminal-defence lawyers of having a financial stake in long trials. And of trivializing the Charter of Rights and Freedoms, by misusing its protections to delay or even obstruct justice.
The speeches, in his blunt, plain-spoken style, brought him to the attention of Prime Minister Stephen Harper, whose government was usually loathe to appoint criminal-defence lawyers – naming four times as many prosecutors to the federally appointed courts as criminal lawyers.
Appointed in 2011, he quickly made his mark. In 2013, in a case called MacKenzie, he wrote for a 5-4 majority upholding a police search of a car using a sniffer dog. The driver had appeared nervous and slowed his car abruptly when he saw a police car. That was enough, Justice Moldaver wrote, for police to have a “reasonable suspicion,” which he said is more than just a hunch. Police should be allowed to do their jobs without every move being “placed under a scanning electron microscope,” he wrote.
Then, in 2015, a drug dealer named Barrett Richard Jordan, whose prosecution had lasted four years from charge to conviction, landed at the court. The crusader against delay had his moment.
During the Supreme Court hearing, Justice Moldaver asked Mr. Jordan’s lawyer, Eric Gottardi, what he would think of time limits for criminal trials. Mr. Gottardi suggested 24 months for trials in Superior Court; Justice Moldaver countered with 30. In July, 2016, Justice Moldaver co-authored a decision in the case with Justice Russell Brown and Justice Andromache Karakatsanis that imposed time limits of 30 months for Superior Court and 18 months for proceedings in Provincial Court. The bluntness of his earlier speeches was evident in the court’s criticisms of complacency around delay – and by a 5-4 count, the time limits became the law of the land.
That same day, the court applied the ruling to a case called Williamson, in which a male mentor from a teacher’s college had been convicted of raping a 12-year-old boy, Byron Ruttan, at least 50 times. The conviction was tossed out over delay after proceedings lasted roughly 35 months.
The effects of the Jordan and Williamson rulings were far-reaching: convictions thrown out, charges dropped, emergency meetings held of federal and provincial justice ministers. Most preliminary hearings were scrapped. Judges, prosecutors and defence lawyers formed working committees to unclog the courts. And delays were reduced.
“In my view, the ruling in Jordan is a reflection of Justice Moldaver’s deep desire to cut to the heart of any legal issue and do away with the unnecessary over-complication of Charter litigation,” Mr. Gottardi says.
In the first two decades of the 1982 Charter of Rights and Freedoms, the Supreme Court was known for being protective of the rights of accused persons. But then the pendulum swung, and during Justice Moldaver’s time, the court stressed broader societal interests in the prosecution of crime, expanding police powers to detain and interrogate suspects, Osgoode Hall law professor Benjamin Berger says.
In the past, the court’s members would include criminal-law specialists on both sides of debates around police powers. But not today, Prof. Berger says.
“For many years he has been the only member of the Court who came to the position as an acknowledged specialist in the field,” referring to his years in criminal defence and as an instructor in criminal law to judges, prosecutors and law students. That may help explain his influence in shaping criminal law.
With J.J., Justice Moldaver leaves the court on a note of controversy. “Parliament has legislated a formula for wrongful convictions,” Justice Russell Brown, a conservative libertarian appointee of Mr. Harper’s, wrote in a powerful dissent in the case. “Indeed, it has all but guaranteed them.”
Similarly, Daniel Brown, president of the Criminal Lawyers’ Association, says pillars such as the presumption of innocence, the right to silence, and the principle against self‑incrimination are under attack by Parliament, and “sanctioned by the majority of our highest court.”
But women’s activists hailed Justice Moldaver’s co-written decision in J.J. Lawyer Joanna Birenbaum said the urgency of the words “captured women’s lived reality and set an important direction for the Court and our society.”