The Hon. Michael J. Moldaver of the Supreme Court of Canada.Supreme Court of Canada
Prime Minister Justin Trudeau will have a chance to push an increasingly divided Supreme Court to the left with the retirement in September of Justice Michael Moldaver, a Stephen Harper appointee.
Justice Moldaver’s retirement date was announced on Thursday.
But the Prime Minister’s choice, his fifth, will be circumscribed by a need to find a replacement with Justice Moldaver’s deep expertise in criminal law, on which he has been the Supreme Court’s leading specialist. Almost certainly, the new justice will have to be a woman, to restore the 5:4 ratio Mr. Trudeau inherited from Mr. Harper.
Justice Moldaver is one of five member of the court who in the past two years have endorsed a more conservative approach to interpretation of the Charter of Rights and Freedoms than the one that has generally prevailed over the past 40 years. And the court has begun splitting largely by party of appointment.
Hence, the replacement of Justice Moldaver comes at a critical time for a young court, in which only one judge has served at least 10 years.
“I think it’s entirely possible that Justice Moldaver’s retirement will alter the balance on the court,” University of Ottawa law professor Vanessa MacDonnell said in an e-mail. “Moldaver has been part of the majority in recent cases in which the court has adopted a narrower approach to Charter interpretation. Assuming that Trudeau appoints a judge with a progressive judicial orientation, the balance could well shift back to the more classical, generous approach to rights interpretation.”
Justice Moldaver, 74, the son of a scrap dealer from Peterborough, Ont., and grandson of the city’s first rabbi, was not a scholar, by his own description. Yet he did much to shape the criminal law, as a pragmatist and prolific writer of judgments who sometimes wore his sympathy for victims on his sleeve, and who believed that the system’s long-standing features such as delay, or appeal court judges throwing out trial rulings over small imperfections, could be fixed.
His best-known ruling came in a 2016 case called Jordan, which he co-wrote with Justice Russell Brown and Justice Andromache Karakatsanis. In it, the court imposed time limits on criminal proceedings to end what it called a “culture of complacency and delay.” The system went into spasms, with more than a thousand cases dropped or thrown out of court, and an emergency meeting of the federal and provincial attorneys-general. But judges, prosecutors and defence lawyers began working together to ease delay, and governments added hundreds of millions of dollars in new resources to the system. The result was a reduction in endemic delay.
Justice Moldaver, the last Jewish member on a court that as recently as 2013 had four, began in criminal law under the expert tutelage of G. Arthur Martin, after whom the Criminal Lawyers’ Association has named its annual award. Justice Moldaver worked alongside criminal-defence luminaries Eddie Greenspan, Alan Gold and Marc Rosenberg. Yet he became a criminal lawyer unlike almost any other, refusing to represent clients he believed to be guilty of serious crimes, he has said publicly.
“That’s when his friends said: ‘Time for you to become a judge,’” Brian Greenspan, a leading criminal lawyer and Eddie’s brother, said in an interview.
He was a trial judge for five years, and then served 15 years on the Ontario Court of Appeal, where he gave two rip-roaring speeches that brought him to Mr. Harper’s attention. Expressing outrage at delay, he blasted criminal-defence lawyers for making “frivolous” Charter claims. The speeches foreshadowed the battle he helped spearhead against delay in Jordan.
They also exemplified the gruff, affable, plain-spoken small-town kid for whom Peterborough, the place where his father always left the car keys in the ignition, stood for a set of values. “He’s always had the ordinary citizen in mind,” Gerry Ferguson, a professor emeritus at the University of Victoria, said in an interview. He mentioned a 2019 case called Barton, in which an Indigenous woman was killed during sex work, and Justice Moldaver instructed lower-court judges to explain to jurors the need to disregard myths and stereotypes.
“We live in a time where myths, stereotypes, and sexual violence against women – particularly Indigenous women and sex workers – are tragically common,” Justice Moldaver began that ruling. (Bradley Barton, initially acquitted, was sentenced by a judge to 12 1/2 years for manslaughter.)
While on the court, he gave an interview in which he said appellate judges have “created an atmosphere of fear” among trial judges. The Supreme Court has during his tenure regularly overturned appeal-court rulings, often in sexual-assault cases where trial judges had found complainants credible.
Carissima Mathen, a University of Ottawa law professor, called Justice Moldaver “exceptionally fair-minded, pragmatic and compassionate.” She added: “He had a remarkable ability to drill down to the essential questions before the court.” To the extent the court has a centre, she said, “it was occupied by Moldaver.”
Justice Moldaver, who on Dec. 23 will turn 75, the mandatory retirement age for Supreme Court judges, declined to be interviewed on Thursday. But in a candid speech when he received an honorary doctorate at the University of Toronto, his alma mater, in 2019, he told the students he sometimes wakes up in the middle of the night thinking he is “inadequate and unqualified,” and has “no business sitting on the Supreme Court of Canada.”
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