Michael James Moldaver (born December 23, 1947) is a former Canadian judge. He was a puisne justice on the Supreme Court of Canada from his 2011 appointment by former Prime Minister Stephen Harper until his retirement in 2022. Before his elevation to the nation's top court, he served as a judge at the Ontario Superior Court of Justice and then the Court of Appeal for Ontario for over 20 years. A former criminal lawyer, Moldaver is considered an expert in both Canadian criminal law and the Canadian Charter of Rights and Freedoms.
Early life and education Moldaver was born on December 23, 1947, in Peterborough, Ontario. He is the youngest son of Irving Moldaver and Ruth Moldaver (née Black), his family had 3 three sons before him. Moldaver's father, Irving, was a Russian-Jewish émigré to Peterborough who worked as a scrap metal dealer; Ruth Moldaver's family ran a clothing store. Moldaver's maternal grandfather was also Peterborough's first rabbi.
As his parents did not have the opportunity to receive a formal education, they stressed the importance of their sons receiving higher education. Moldaver attended elementary school at Queen Mary Public School and high school at Peterborough Collegiate. Upon graduating, he enrolled at the University of Toronto, receiving a Bachelor of Arts in 1968. From there, he decided to pursue a Bachelor of Laws and enrolled at the school's Faculty of Law. Moldaver struggled in his first semester of law school and failed his December exams. Moldaver recovered and upon his graduation in 1971, was named his graduating year's gold medalist, an award given to the student with the highest academic average.
Career as a lawyer Upon graduating from law school, Moldaver began articling in Toronto at Thomson Rogers. At that time, his mind was set on finishing his articles and then returning to Peterborough to practice with his brother. However, Moldaver's plans changed with the opportunity to finish the last six months of his articles with a leading criminal defence lawyer, Goldwyn Arthur Martin. Due to his experience with Martin, he decided to remain in Toronto and pursue his career as a criminal lawyer. Moldaver was called to the Ontario Bar in 1973.
Moldaver always wanted to pursue criminal law, as he enjoyed his criminal law classes in law school. In addition, he also admired the television show Perry Mason, which was based on a fictional charismatic criminal defence lawyer. Moldaver stated that the thought of "being able to defend a person charged with murder, who was innocent, and have the real culprit confess after a blistering cross-examination was too much for [him] to resist". His passion for criminal law crystallized during his time with Martin, whom he later described as the "Dean of criminal law in Canada".
Following his articles, Moldaver began his career as a criminal practitioner at the law firm of Pomerant, Pomerant and Greenspan and became a partner in 1975. He had the opportunity to work with Justice Marc Rosenberg, and notable lawyers Eddie Greenspan and Alan Gold. He gained a wealth of experience in short time, as he was given the opportunity to work on murder files in his first year. As he continued to develop and progress into becoming a successful lawyer, he tried to stay true to his personal motto: "Don't go to trial unless you absolutely have to, but if you do go to trial – make your mark."
After being named Queen's Counsel in 1985, he left the firm to begin practising as a sole practitioner. After two years, he joined Goodman and Goodman, where he spent the rest of his practising career.
Throughout his career, Moldaver has appeared in front of courts at every level, including the Ontario Superior Court of Justice and the Court of Appeal for Ontario. As a lawyer, his only appearance in the Supreme Court of Canada was to make an application for leave to appeal a case to the Court. Following that application, he told his firm he was "never going back to that place".
Some of the most frequently cited cases in which he was counsel include: R v SchellR v Schell (1977), 33 CCC (2d) 422, 1977 CarswellOnt 982 (Ont CA). R v TorbiakR v Torbiak (1978), 40 CCC (2d) 193 (Ont CA). R v LavertyR v Laverty (1977), 35 CCC (2d) 151 (Ont CA). PSI Mind Development Institute Ltd. v RPSI Mind Development Institute Ltd. v R (1977), 37 CCC (2d) 263 (Ont HC). R v BoydR v Boyd (1979), 47 CCC (2d) 369, 1979 CarswellOnt 1334 (Ont CA). R v RamdassR v Ramdass (1982), 18 MVR 256, 2 CCC (3d) 247, 1982 CarswellOnt 40 (Ont CA). R v MAZR v MAZ (1987), 35 CCC (3d) 144 (Ont CA).
Ontario judge In 1990, at age 42, Moldaver was appointed to the High Court of Justice of the Supreme Court of Ontario (now known as the Ontario Superior Court of Justice). He spent five years there before being elevated to the Court of Appeal for Ontario in 1995. Moldaver sat on the Court of Appeal for the next 16 years before his eventual appointment to the Supreme Court of Canada. While at the Court of Appeal, Moldaver was known as one of the Court's most outspoken members and was considered an expert on criminal law. In a series of controversial speeches, he complained that criminal defence lawyers would sometimes "trivialize" the Canadian Charter of Rights and Freedoms out of monetary self-interest by arguing for unnecessary rights claims.
During his time at the Court of Appeal, Moldaver was involved in the acquittal of two longstanding murder convictions. Led by Innocence Canada, Steven Truscott's case was brought before the Court in 2006. In 2007, Moldaver joined the court in acquitting Truscott of his 1959 rape and murder convictions, due to new medical evidence and fresh testimony. During the trial, Moldaver was critical of the investigating team, questioning them as to why they never considered a sexual psychopath as a suspect.
In 2009, Moldaver wrote the majority decision which acquitted Roméo Phillion of his 1972 murder conviction. Moldaver ultimately decided to overturn the conviction due to the Crown's failure to disclose a key piece of evidence. Moldaver held the missing evidence would have been "gold" in the defence lawyer's hands and that there was overwhelming support for the claim the evidence had not been properly disclosed.R v Phillion, 2009 SCC 202 at para 146.
In 2011, Moldaver, along with a unanimous court, sentenced Momin Khawaja to life in prison for engaging in terrorist activity. The Court held that harsh sentences are required to deter individuals from engaging in future terrorist activity.
Supreme Court of Canada
Appointment On October 17, 2011, Moldaver, along with fellow Court of Appeal for Ontario judge Andromache Karakatsanis, was nominated to the Supreme Court of Canada by then-Prime Minister Stephen Harper. His nomination and eventual appointment filled one of the two vacancies left by retiring Justices Ian Binnie and Louise Charron. He was formally appointed to the Court on October 21, 2011. Though Moldaver was appointed by a Conservative government, he is not seen as having a strong conservative political ideology but has been described as being mildly conservative, with a dedication to being pragmatic and following the law.
Moldaver's nomination raised some concern, due to his prior statements made about criminal defence lawyers and the Charter. Moldaver has publicly criticised criminal defence lawyers' roles in the growing length of trials. In a series of speeches, Moldaver stated that criminal lawyers have demeaned the Charter by bringing baseless Charter claims as a means to challenge evidence. In his 2005 address to the Criminal Lawyers Association, Moldaver stated that the criminal lawyer who continues to "throw up a medley of Charter issues in the hopes that one or two might stick" should realize "those days are gone".
These comments received pushback from criminal lawyers, who accused Moldaver of interpreting the Charter as a "weed to be stunted" instead of a "vital living tree". In expressing his disapproval with counsel who clog the justice system by bringing baseless Charter claims, he suggested he wants to see changes that will "simplify the criminal law, and in the process, restore the public's faith and confidence in our criminal justice system". Though the majority of his comments have been directed towards defence lawyers, Moldaver has also been critical of Crown counsel. He has questioned whether they overcharge, refuse to yield to reasonable defence requests, and push the evidentiary envelope beyond what is needed for a conviction.
Moldaver's nomination received further criticism for his inability to speak French. Both the Bloc Quebecois and the New Democratic Party expressed their concerns over his lack of French proficiency and claimed they would not support his nomination. The Quebec Bar Association expressed concerns his appointment would deny Francophones equality before the law and was a step backwards because his predecessor – Justice Louise Charron – was bilingual. However, the Conservative Party advocated for Moldaver, noting he was capable of using the translation services offered in the Court. Interim Liberal Party leader Bob Rae suggested it should not be assumed that someone cannot learn French. Moldaver expressed his respect for the French language and apologized for his inability to speak it; he committed himself to becoming more proficient in the future.
Notable judgments In his first year on the Supreme Court, Moldaver penned eight majority decisions. He was the only member of the Court to be a part of all 75 majority decisions rendered that year. In the following years, Moldaver has written some notable decisions. In 2013, in R v Mackenzie, Moldaver wrote the majority judgement in the 5–4 decision. In upholding a police search and seizure, he argued that every single police action should not be "placed under a scanning electron-microscope". In 2014, writing for the majority in R v Hart, Moldaver redefined the common law test for the admissibility of confessions obtained through a Mr. Big sting operation.R v Hart, 2014 SCC 52. He held that the confessions will only be admissible if they contain probative value and do not cause an abuse of process. In 2015, he wrote the dissenting judgment in the 6–3 decision in R v Nur. He argued that the Court should have shown judicial restraint and upheld Parliament's three-year mandatory minimum sentence for illegal possession of a loaded firearm. Additionally, Moldaver wrote the lone dissent in Reference Re Supreme Court Act, ss 5 and 6, where he supported Stephen Harper's decision to appoint Marc Nadon to the Supreme Court. As of March 2017, Moldaver has written 39 majority judgments and 10 dissents during his time on the Supreme Court.Reasons of the Supreme Court of Canada by Justice Moldaver, 2017-03-25
Reference re Supreme Court Act, ss 5 and 6 In Reference Re Supreme Court Act, ss 5 and 6, the Supreme Court was asked to determine the eligibility requirements for members of Quebec Courts and the Quebec Bar to be appointed to one of Quebec's three constitutionally guaranteed seats in the Supreme Court. The reference came before the Court in response to Stephen Harper's appointment of Justice Marc Nadon, a Federal Court of Appeal judge. The appointment was challenged by Rocco Galati and the Quebec government. They argued Nadon was not eligible for appointment under the Supreme Court Act because he was not a current member of a Quebec Superior Court or the Quebec Bar. The Court was asked to determine if a former member of the Quebec Bar satisfied the Supreme Court Act's requirements. By a 6–1 decision, the Court held that only current members of the Quebec Bar or a Quebec Superior Court satisfied the requirements and could validly be appointed. Consequently, Nadon's appointment was quashed.