Michael J. Moldaver

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.

As his parents did not have the opportunity to receive a formal education, they stressed the importance of their sons receiving higher education. At that time, his mind was set on finishing his articles and then returning to Peterborough to practice with his brother.

Some of the most frequently cited cases in which he was counsel include: R v Schell R v Torbiak R v Laverty PSI Mind Development Institute Ltd. v R R v Boyd R v Ramdass R v MAZ

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). 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. 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.

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.

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. 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.

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". 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". 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. 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. He held that the confessions will only be admissible if they contain probative value and do not cause an abuse of process.

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. Moldaver argued that a judge who meets the requirements under section 5, is eligible to be named to one of the three seats available under section 6. Police pulled MacKenzie over during a highway traffic stop and, through the use of a sniffer-dog, discovered a large amount of marijuana. He held that police are permitted to use sniffer-dogs to search for drugs and prevent crimes, even in situations where individuals have a reasonable expectation of privacy, provided the police have reasonable grounds to suspect that the search will reveal evidence of a criminal offence. In changing the common law test for the admissibility of a confession, Moldaver established a new test. In order for a confession to be admissible, Moldaver held that the probative value must outweigh the prejudicial effect.

Moldaver expanded this test to protect an accused, by allowing confessions to be admissible only if the accused would not be subject to an abuse of process. He held that "misconduct that offends the community’s sense of fair play and decency will amount to an abuse of process and warrant the exclusion of the statement."

R v Nur In 2015, the Court was asked to determine whether the mandatory minimum sentences of three and five years for the possession of a loaded prohibited firearm – contrary to section 95(1) of the Canadian Criminal Code – violated section 12 of the Charter for being cruel and unusual punishment. Writing for a 6–3 majority, Chief Justice McLachlin stated that criminal punishments need to reflect the seriousness of the crime. As a result, the Court held that the mandatory minimums are inconsistent with section 12 of the Charter and are therefore declared of no force of effect under section 52 of the Constitution Act, 1982. He stated that the nature of the hybrid offence acts a "safety valve", which ensures that the least serious offenders will not face three years in prison.

He concluded that an accused party will not be unjustly punished, based solely on the Crown's election, because if the Crown proceeds improperly and it leads to a "grossly disproportionate" sentence, there are remedies for an accused under section 24(1) of the Charter. His retirement was effective September 1, 2022.

Involvement within the legal community Moldaver has maintained an active role within the legal community. During his career as a trial lawyer, he was a one-time co-chair of the Canadian Bar Association, a director of the Criminal Lawyers' Association and the Advocates' Society, and a co-chair of the University of Toronto Academic Tribunal, Discipline Subsection.

Apart from post-secondary education, Moldaver has contributed to continuing legal education programs for lawyers and the judiciary. He has frequently taught and spoken at numerous educational programs. Some of which include programs sponsored by the National Judicial Institute, the Canadian Institute for the Administration of Justice, the Ontario Crown Attorneys' Association, Criminal Lawyers' Association and Ontario Bar Association.