Michael Moldaver

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The Honourable
Michael J. Moldaver
Puisne Justice of the Supreme Court of Canada
Assumed office
October 21, 2011
Nominated by Stephen Harper
Preceded by Ian Binnie/Louise Charron
Personal details
Born (1947-12-23) December 23, 1947 (age 69)
Peterborough, Ontario
Alma mater University of Toronto
University of Toronto Faculty of Law
Occupation Jurist
Profession Lawyer
Religion Judaism

Michael Moldaver (born December 23, 1947) is a Canadian judge who has been a Puisne Justice on the Supreme Court of Canada since his 2011 appointment by former Prime Minister Stephen Harper. Before his elevation to the nation's top court, he was a judge on the Ontario Court of Appeal for over fifteen years.

Early life and education[edit]

Michael Moldaver was born on December 23, 1947 in Peterborough, Ontario.[1][2] He is the third and last child of Irving Moldaver and Ruth Moldaver.[2] Moldaver has two older brothers, Joel and Peter.[1][2][3] The Moldavers were a working class family, as Irving was a scrap metal dealer and his maternal grandfather was the city’s first rabbi.[1][2][4] From a very young age, his parents played an influential role in shaping his future career.[5] They instilled a dedication to work hard and stressed ethical behaviour.[5]

As his parents did not have the opportunity to receive a formal education, they stressed the importance of their sons receiving higher education.[5]

Moldaver attended elementary school at Queen Mary Public School and high school at Peterborough Collegiate.[1][3] Upon graduating, he enrolled at the University of Toronto where he graduated with a Bachelor of Arts in 1968.[6][1] From there, he decided to pursue a Bachelor of Laws, and enrolled at the school’s Faculty of Law.[6][1] Moldaver struggled in his first semester of law school. Upon failing a December midterm exam, he returned to Peterborough and considered leaving law school to join his father’s scrap metal business.[5][1] However, his father forbid it. He told him that he was getting on the next bus back to Toronto and dropped him off at the bus station.[5] Moldaver began to thrive in his studies. He graduated in 1971,[4] and was named his graduating year’s gold medalist – an award given to the student with the highest academic average.[6] [1]

Career as a lawyer[edit]

Upon graduating from law school, Moldaver began articling in Toronto at Thomson Rogers.[6] At that time, his mind was set on finishing his articles and then returning to Peterborough to practice with his brother.[5] However Moldaver’s plans changed when he received the opportunity to finish the last six months of his articles with a leading criminal defence lawyer, Goldwynn Arthur Martin.[5][6][4] It was due to his experience with Martin, that he decided to remain in Toronto and begin his legal career as a criminal lawyer. Moldaver was called to the Ontario Bar in 1973.[6]

Moldaver always desired to pursue criminal law, as he enjoyed his criminal law classes in law school.[5] He also had an admiration for the television show Perry Mason, which was based on fictional a 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.”[5] His passion for criminal law crystallized during his time with Goldwynn Arthur Martin, who he described as the “Dean of criminal law in Canada.”[5]

Following his articles, Moldaver began his career as a criminal practitioner at Pomerant, Pomerant and Greenspan, where he became a partner in 1975.[6] He had the opportunity to work with Justice Marc Rosenburg, and notable lawyers Eddie Greenspan and Alan Gold.[4][5] He gained a wealth of experience in short time, as he was given the opportunity to work on murder files in his first year.[5] 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 you mark”[5]

After being named Queen’s Counsel in 1985, he left the firm to begin practicing as a sole practitioner.[6] After two years, he joined Goodman and Goodman, where he spent the remainder of his practicing career.[6]

Throughout his career, Moldaver has appeared in front of courts at every level. As a lawyer, his only appearance in the Supreme Court of Canada was to make a leave application. Following that application, he told his firm that he was “never going back to that place.”[7] Moldaver has represented clients in both the Ontario Superior Court of Justice and the Ontario Court of Appeal.[citation needed]

Some of his notable cases include:

  • R v Schell (1977), 33 CCC (2d) 422, 1977 CarswellOnt 982 (ONCA).[citation needed]
  • R v Laverty (1977), 35 CCC (2d) 151 (ONCA).[citation needed]
  • PSI Mind Development Institute Ltd. v R (1977), 37 CCC (2d) 263 (ONHC).[citation needed]
  • R v Boyd (1979), 47 CCC (2d) 369, 1979 CarswellOnt 1334 (ONCA).[citation needed]
  • R v Ramdass (1982), 18 MVR. 256, 2 CCC (3d) 247, 1982 CarswellOnt 40 (ONCA).[citation needed]
  • R v M.A.Z. (1987), 35 CCC (3d) 144 (ONCA).[citation needed]

Judicial career[edit]

In 1990, at the age of 42, Moldaver was appointed to the High Court of Justice of the Supreme Court of Ontario (now known as the Superior Court of Justice).[citation needed]

Ontario Court of Appeal[edit]

In 1995, Moldaver was elevated to the Ontario Court of Appeal, where he presided for 16 years. While at the Court of Appeal, Moldaver was known as one of its most outspoken members and was considered an expert on criminal law.[8] While on the Ontario Court of Appeal, he complained that sometimes criminal defence lawyers would “trivialize” the Charter of Rights and Freedoms out of monetary self-interest by arguing for unnecessary rights claims.[4]

Supreme Court of Canada[edit]

Appointment[edit]

On October 17, 2011, he was nominated by Stephen Harper, along with fellow Ontario Court of Appeal judge Andromache Karakatsanis to the Supreme Court of Canada.[9][10][11][12]

Moldaver’s nomination raised some concern amongst lawyers, due to his prior statements made about criminal defence lawyers and the Canadian Charter of Rights and Freedoms.[13][14] Moldaver has been publically critical of criminal defence lawyers' roles in the growing length of trials. In a series of speeches, Moldaver stated that criminal lawyers have demeaned the Charter of Rights and Freedoms, by bringing baseless Charter claims as a means to challenge evidence.[14][15][16] In his address to the Criminal Lawyers Association in 2005, 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.”[16] In expressing his disapproval with counsel who clog the justice system by bring baseless Charter claims, he suggested that he wants to see changes which will “simplify the criminal law, and in the process, restore the public’s faith and confidence in our criminal justice system.”[15]

Moldaver’s potential appointment received further criticism for his inability to speak French.[17][18][19] Both the Bloc Quebecois and the New Democratic Party expressed their concerns over his lack of French proficiency and claimed that they would not support his nomination.[17] The Quebec Bar Association expressed concerns that his appointment would deny Francophones equality before the bar and is a step backwards because his predecessor – Justice Louise Charron – was bilingual.[17] However, the Conservative Party advocated that Justice Moldaver is capable of using the translation services offered in the Court. Interim Liberal Party leader Bob Rae also suggested that it should not be assumed someone cannot learn French.[17] Moldaver expressed his respect for the French language and apologised for his inability to speak French. He committed himself to becoming more proficient in the future years.[17]

Notable judgements[edit]

In his first year on the bench, Moldaver delivered eight majority rulings. In 2013, Moldaver gave the majority 4-3 ruling in R v Mackenzie, arguing that every single police move should not be “placed under a scanning electron-microscope” to uphold a police search and seizure action. In the 6-3 ruling in the 2015 case of R v Nur, he wrote the dissent, arguing that the court should have upheld the three-year mandatory minimum sentence for illegal gun possession to avoid judicial activism. Moldaver also wrote the lone dissent in Reference re Supreme Court Act, 2014, supporting Stephen Harper's decision to appoint Marc Nadon to the Supreme Court.[4]

Reference re Supreme Court Act, ss 5 and 6[edit]

In Reference re Supreme Court Act, ss 5 and 6, the Supreme Court was asked to examine the eligibility requirements for members of the Quebec Courts and the Quebec Bar to be appointed to one of Quebec’s three guaranteed seats on the Supreme Court.[20] 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, who argued that Nadon was not eligible for appointment, under the Supreme Court Act, because he was not a current member of a Quebec’s Superior Court or the Quebec Bar.[21] The Court was asked to determine if a former member of the Quebec Bar satisfied that Supreme Court Act's requirements. By a 6-1 decision, the Court held that only current members of the Quebec Bar or a Quebec Court satisfied the requirements and could validly be appointed. This is resulted in Nadon’s appointment being quashed.[citation needed]

Moldaver disagreed with the majority, and wrote a strong dissent. Under his reading of the Supreme Court Act, section 5 and section 6 are sufficiently related and are to be read together.[citation needed]

Section 5 sets out the threshold eligibility requirements to be appointed a judge of this Court.  Section 6 guarantees three Quebec seats on the Court by specifying that, for at least three of the judges, the bar mentioned in s. 5 is the Barreau du Québec and the superior courts mentioned in s. 5 are the Superior Court of Quebec and the Quebec Court of Appeal.  Put another way, s. 6 builds on s. 5 by requiring that for three of the seats on this Court, the candidates who meet the criteria of s. 5 must be chosen from three Quebec institutions (the Barreau du Québec, the Quebec Court of Appeal, and the Superior Court of Quebec).  Section 6 does not impose any additional requirements.

-- Reference re Supreme Court Act, ss 5 and 6 , Paragraph 119

Section 5 states that “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.”[22] Moldaver argues that as long as a judge meets the requirements under section 5, they are eligible to one of the three seats available under section 6. As section 5 does require that the appointee be a current member of a superior court or the bar of a province, Moldaver held that both current and past advocates of at least 10 years standing at the Quebec Bar are eligible for appointment to this Court. As Nadon had previously been a member of the Quebec Bar for more than ten years, Moldaver would have upheld his appointment.[citation needed]

R v MacKenzie[edit]

In R v MacKenzie, the accused was charged with possession of a controlled drug for the purpose of trafficking. The accused was pulled over during a highway traffic stop and, through the use of a sniffer-dog, the police discovered a large amount marihuana.[23] The accused alleged that the dog’s sniff violated his section 8 Charter rights, as an unconstitutional search, because the police lacked reasonable suspicion that he was involved in a drug related offence.[citation needed]

Moldaver wrote the majority decision in the 5-4 ruling, which held the search to be constitutional. 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 that they have reasonable grounds to suspect that the search will reveal evidence of a criminal offence.[citation needed]

In sum, while it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without undue scepticism or the requirement that their every move be placed under a scanning electron microscope.

-- R v MacKenzie, 2013 SCC 50

He emphasizes that the police only require a reasonable suspicion that they will find narcotics and not a reasonable probability of finding them. To determine whether the threshold has been satisfied, he states that common sense, flexibility, and experience must be viewed through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer.[citation needed]

Involvement within the legal community[edit]

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.[6][19] In addition, he co-chaired the 1989 and 1990 Advocacy Symposiums.[6]

Throughout his professional life, Moldaver has contributed to legal education. From 1975 to 1995, he taught criminal law classes at Osgoode Hall Law School and the University of Toronto.[6] Though he no longer teaches at either university, he continues to sponsor awards at the University of Toronto.[5] Moldaver has sat as a guest member of numerous final panels for various national law school moot competitions. Amongst others, he sat on the final panel of the 2014 Wilson Moot and the 2016 Davies Corporate/Securities Moot.[24][25]

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.[6]

Personal life[edit]

Moldaver has been married.[13][1][8] He is currently married to Rivika Moldaver. He has two daughters, Shannon and Jessica, and two grandchildren.[6]

See also[edit]

References[edit]

  1. ^ a b c d e f g h i "Michael Moldaver's climb to top court had blue-collar beginnings". Toronto Star. Toronto. October 17, 2011. Retrieved March 25, 2017. 
  2. ^ a b c d Akin, David (November 15, 2011). "Michael Moldaver sworn in to top court". Peterborough Examiner. QMI Agency. Retrieved March 25, 2017. 
  3. ^ a b Bower, Elizabeth (October 18, 2011). "Local man nominated for Supreme Court judge". Peterborough Examiner. Retrieved March 25, 2017. 
  4. ^ a b c d e f Fine, Sean (October 3, 2016). "Canada's bench strength: Meet the judges, new and old, of the Supreme Court". The Globe and Mail. Retrieved October 4, 2016. 
  5. ^ a b c d e f g h i j k l m n cpac (2014-07-03), Beyond Politics - Justice Moldaver, retrieved 2017-03-22 
  6. ^ a b c d e f g h i j k l m n Canada, Supreme Court of (2001-01-01). "Supreme Court of Canada - Biography - Michael J. Moldaver". Retrieved 2017-03-22. 
  7. ^ "Justice Moldaver on lawyering, life at the SCC, and Judge Judy | Ultra Vires". ultravires.ca. Retrieved 2017-03-24. 
  8. ^ a b "Justice Michael Moldaver, one of two Ontario judges nominated to the Supreme Court on Monday, isn't shy about speaking up.". The Toronto Star. 2011-10-17. ISSN 0319-0781. Retrieved 2016-01-07. 
  9. ^ Kirk Makin (17 October 2011). "Harper picks two Ontario appeal judges to fill Supreme Court vacancies". Toronto: The Globe and Mail. Retrieved 17 October 2011. 
  10. ^ Meagan Fitzpatrick (17 October 2011). "Supreme Court judge nominees named by Harper". CBC. Retrieved 17 October 2011. 
  11. ^ Robert Fife (16 October 2011). "Prime minister to announce 2 Supreme Court nominees". CTV News. Retrieved 16 October 2011. 
  12. ^ Kirk Makin (16 October 2011). "Harper to appoint Ontario judges Karakatsanis and Moldaver to Supreme Court: CTV". Toronto: The Globe and Mail. Retrieved 16 October 2011. 
  13. ^ a b Affairs, Legal (17 October 2011). "Moldaver 'a force to be reckoned with'". The Star. Toronto. 
  14. ^ a b "Christie Blatchford: Some star power for our top court". National Post. Retrieved 2017-03-18. 
  15. ^ a b Moldaver, Michael J. (November 15, 2006). "The State of the Criminal Justice System in 2006: An Appellate Judge's Perspective". Ontario Court of Appeal. Retrieved March 18, 2017. 
  16. ^ a b Moldaver, Michael J. (2005). "Long Criminal Trials: Masters of a System They are Meant to Serve". Criminal Reports. 32 CR (6th) 316. 
  17. ^ a b c d e "Supreme Court nominee vows to improve French skills". CBC News. Retrieved 2017-03-18. 
  18. ^ Cleroux, Richard. "The Hill: One unilingual judge on SCC bench enough". Retrieved 2017-03-18. 
  19. ^ a b "PM taps Ontario judges Karakatsanis, Moldaver for Supreme Court". The Globe and Mail. Retrieved 2017-03-18. 
  20. ^ "Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21". CanLII. 
  21. ^ "Could the Conservatives appoint another Marc Nadon to the Supreme Court?". Global News. Retrieved 2017-03-25. 
  22. ^ "Supreme Court Act, RSC 1985, c S-26 at s.5.". CanLII. 
  23. ^ "R v MacKenzie, 2014 SCC 50". CanLII. 
  24. ^ "The Wilson Moot". www.thewilsonmoot.com. Retrieved 2017-03-23. 
  25. ^ "Davies - Davies' Annual Corporate/Securities Law Moot". www.dwpv.com. Retrieved 2017-03-23. 

External links[edit]