"Major overhaul" needed

After 11 years on the Supreme Court of Canada bench, former justice Michael Moldaver said he regrets he couldn't do more to improve Canada's overburdened and bloated criminal law system and calls on federal and provincial governments to substantially overhaul it.

"When I went to the Supreme Court of Canada, I was hopeful that I might be able to do something about the complexity. And I feel like I failed in that regard," he said in a recent interview.

From his new perch at Bay Street firm Goodmans, Moldaver reflected on his years as a judge — he was appointed in 1990 to what was then the Ontario High Court of Justice and then elevated to the Ontario Court of Appeal in 1995 — as well as almost three decades practising criminal law. What concerns him most, he says, is the "prolixity and complexity" of this country's criminal justice system, including the charges judges have to give juries at the end of trials.

"I'm convinced, sadly, that complexity is here to stay and once you recognize that, I think that we have to do a major overhaul of the criminal justice system and get down to basics and ask ourselves what it's all about, what is its purpose," he said. "This system is so bloated, and so troublesome in many respects, because the trials these days often go on for weeks and months."

In his view, the system doesn't provide access to justice for everybody. The very rich and the very poor get to court, he said, but the "whole middle class is effectively shut out," and it's certainly not "the cure-all" for society's ills that some see it as. 

Due to increased case complexity stemming in large part from the Charter of Rights and Freedoms, trials are longer and there's a culture of delay that doesn't serve anyone, he said. Additionally, the more court time criminal law matters take up, the less time there is for civil cases without massively increasing costs, the number of court staff and judges, and more.

The numbers are shocking. Between the SCC's R. v. Jordan case decision in 2016 — which set deadlines of 18 months for cases to be brought to trial in provincial courts and 30 months in superior courts, and 2019 — Global News found nearly 800 criminal cases across Canada had been thrown out over delays. On the civil side, Toronto litigator Michael Lesage collected data on the courts in Ontario (in the face of a lack of official statistics), finding in 2019 it took on average almost five years and nine months for a Superior Court civil case to make it to trial. The Covid years certainly slowed things down further. Moldaver said when he was a lawyer, they argued four drunk driving cases in a day but now a single case takes a whole day or even two.

One potential solution to the overwhelming number of cases, said Moldaver, is for the courts and Crowns, under guidance from the federal and provincial governments, to leave "the criminal justice system for the 10% of the cases that come through, that are really serious and then actually be prosecuted with vigour."

The 90% of crimes clogging up courts, like minor assault, breaching a curfew by an hour, or even possession of small amounts of drugs, could be dealt with through administrative, ticketing or other types of diversion schemes. Moldaver pointed to British Columbia's Automatic Roadside Prohibition scheme, where if a driver blows over the legal limit or refuses to provide a sample at a roadside stop, they automatically face fines, suspensions of their licence, or vehicle impounds (which the SCC upheld in 2015's Goodwin v. B.C.). That scheme alone removed a 20% to 25% chunk of impaired driving cases from the provincial courts.

About five years into his career as a criminal defence counsel, Moldaver made his first and only trip to the Supreme Court of Canada as a practising lawyer.

"It was a leave application, and I got screamed at for 15 minutes [by the judges]," said Moldaver. "I just dragged myself out tail between my legs," and I came back to the office in Toronto and said to Eddie Greenspan, Alan Gold and Mark Rosenberg, "I'm never going back to that place." Despite those 1978 protestations to his criminal law partners, Moldaver did return in 2011 to the court, as a judge.

That experience forever burned in his mind lessons that he took forward to his time on the bench. "It taught me that judges have to be careful. Judges can ruin a young lawyer if they behave in a manner like that," he said. Lawyers have a wide range of skill levels, but they're mostly doing the best they can, he said, so judges have "no reason to engage in gratuitous kind of bullying." Which is not to say he wouldn't "get a bit angry" if he thought counsel were "purposefully and deliberately trying to mislead me or if [they] were so incompetent" they were wasting the court's time.

When he retired from the top court last September, after more than 11 years as its most experienced criminal law judge, Chief Justice Richard Wagner described Moldaver as "one of the best justices the Supreme Court of Canada has ever had."

Moldaver described his time on the court as an "amazing experience" where he respected and trusted his "really smart" judicial colleagues, but admitted occasionally things got a "bit testy."

"It's a funny place in a way because, today, you're my best friend because you're giving me the fifth vote I need to be writing a majority decision. Tomorrow, I don't like you so much because you're giving the other side the fifth bullet they need. It's a bit schizophrenic, but that comes with the territory, and reasonable people can and do disagree."

In early March, Moldaver joined Goodmans to keep his hand in the profession. It was a homecoming of sorts; during his last few years in practice, he shared space with the firm in an office right next to storied founding partner Eddie Goodman. His connection with Goodmans was rekindled through friend and firm partner Francy Kussner, and discussions with firm chair Dale Lastman cemented his decision to join.

Moldaver's wife Rivka stayed in Ottawa because he said she loves it there. He's set up a pied-a-terre in Toronto and commutes back to the capital on weekends when he can. He prefers going into the office every day to meet face-to-face with young lawyers, whom he's keen to mentor. He assists litigators and clients with framing appeals, writing factums, and working on court strategies. There's also the need to get his head around working at a corporate commercial firm after a lifetime in criminal law practice and on the bench.

He's keen to get involved in a public inquiry if one comes up in the near future, he said, and consult with all levels of government on ways to improve the criminal justice system. He's just waiting to be asked, he says joking: "I'm open for pretty much anything and anybody who might like to come to Mikey." 

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Cases that left their mark

Reference re Supreme Court Act (the Nadon case), Supreme Court of Canada, 2014

Justice Marc Nadon, a Federal Court judge, was appointed to the Supreme Court of Canada in 2013, but the announcement stirred great controversy regarding his eligibility as a Quebec appointee. His appointment was later struck down in the reference case by a 6-1 margin. Moldaver is famously the 1.

"That case was interesting on many, many levels," he said. "Not the least of which was that I was on my own in dissent. People have asked me over the years, were you getting a lot of pressure to join the majority? My straight-out honest answer is no, I wasn't."

The other aspect of the case was the Supreme Court essentially "constitutionalizing" itself in light of the government's efforts to patch what it saw as holes in the Supreme Court Act that prevented Nadon's appointment. The court "effectively made it clear that if you want to change the eligibility requirements … for appointments to the Supreme Court of Canada, you're going to have to get … the provinces and federal government and so on and so forth on board."

Re Truscott (R. v. Truscott), Ontario Court of Appeal, 2007

Moldaver was one of a five-judge Ontario Court of Appeal panel that found the 1959 conviction of Steven Truscott for the murder of a 12-year-old girl was a miscarriage of justice and acquitted him of the charges. Truscott spent 10 years in prison, but it wasn't until 30 years later when what is now Innocence Canada won a ministerial review of his case that led to a new investigation. The case was referred back to Ontario's appeal court.

Moldaver said it was "not only the most interesting, but the most rewarding case that I've ever sat on," adding, "there was something so wonderful about being able to bring some closure to the Truscott side."

The retired judge had been aware of Truscott's case since he was an articling student with the legendary G. Arthur Martin, who'd been Truscott's defence counsel. He said 35 years later, he would think of the now-deceased Martin and say to himself: "G.A., you know the unpredictability of life but I'm now in a position to perhaps right a wrong that occurred many, many years ago that you obviously tried your best to right. Fortunately, we're able to."

During that appeal, he'd seen Truscott in the courtroom, but it wasn't until earlier this year that Moldaver met Truscott in person, and they had a "wonderful day and evening together" after he gave the Truscott Lecture in Justice at the University of Guelph.