Resisting Simplification: The Judicial Legacy of the Honourable Michael Moldaver
On September 1st 2022, after nearly eleven years of service, the Honourable Michael Moldaver retired from his post as Justice on the Supreme Court of Canada (“SCC”). This article will take a look at the illustrious career of Justice Moldaver, including his most noteworthy contributions to the SCC’s jurisprudence, while also applying a critical lens to decisions which – in the eyes of the author – express how difficult it is to pin down Moldaver’s partisan allegiances using his judicial decisions.
Former Contributor Ankita Gupta penned an in-depth and closely researched article more than four years ago that chronicles Justice Moldaver’s ascension to the SCC, which can be found here. This article will place its focus on Moldaver’s judicial work on the nation’s highest court since appointment, serving as a companion piece to Ankita’s article.
Ascension to the Supreme Court of Canada
Justice Moldaver was appointed to the SCC on October 17, 2011, alongside Justice Karakatsanis, replacing outgoing justices Ian Binnie and Louise Charron. Once sworn in, Moldaver immediately made his presence known, most strikingly in his area of expertise: criminal law.
When attempting to pin down a jurist’s underlying legal preferences beyond the facts before them, their track record on criminal law-related Canadian Charter of Rights and Freedoms (“Charter”) litigation is a good litmus test. The stark need to balance the interest of the state in providing law enforcement, prosecutors, and judges the greatest degree of latitude to ensure public safety on the one hand, and the interest of citizens in having their fundamental rights and freedoms effectively safeguarded from state interference on the other, is revealing. A vast majority of criminal law cases before the SCC involve an accused bringing a Charter claim against the state for any number of rights violations. The Court then has to determine where they fall in between these two poles – state power or individual freedom. In canvassing Justice Moldaver’s most salient decisions at the SCC, a clear pattern does not emerge. The following three cases, all authored by Justice Moldaver between 2013 and 2019 and focusing on Charter related criminal law litigation, best support this conclusion.
Sniffer Search Dogs
In R v Mackenzie 2013 SCC 50 (“Mackenzie”), the Court was asked to decide what level of ‘reasonable suspicion’ is required for law enforcement to conduct a police sniffer-dog search. Justice Moldaver, writing for a 5-4 majority, ruled in favour of the Crown.
The Court held that assessments of the legality of a sniffer-dog search must be sensitive to the context of each case, accounting for the totality of the circumstances that the police were operating within when determining whether they had a ‘reasonable suspicion’ to justify the search. Moreover, the Court held that, while reasonable suspicion must be based on objectively discernible facts, this assessment must be conducted through the lens of a reasonable person standing in the shoes of a police officer. Finally, the Court concluded by clarifying that the reasonable suspicion standard requires only a possibility of criminal behaviour in light of the totality of circumstances, not a probability.
Each of the Court’s findings worked to provide law enforcement with greater flexibility and deference for conducting their investigations, something Justice Moldaver described as “a cost to individual privacy [that] is accepted as a reasonable one in part because properly conducted sniff searches are minimally intrusive, narrowly targeted and highly accurate” ( Mackenzie, para 86,). The tenor of the Mackenzie decision gave the impression that Moldaver would be a jurist who leaned toward affording greater liberties to law enforcement in the name of public safety, even if it meant some collateral damage to individual Charter protections. Yet, only one year later, this initial categorization would prove hasty.
Mr. Big Operations
In R v Hart 2014 SCC 52 (“Hart”), also penned by Justice Moldaver in a 5-4 majority, the Court was asked to decide whether a highly prolonged, sophisticated ‘Mr. Big Operation’ violated an accused’s Charter protected right to silence. In this case, the accused was suspected of drowning his two daughters in a remote part of Newfoundland and Labrador. He maintained his innocence throughout multiple custodial interrogations. So, the police launched an operation in which they recruited the accused, who was socially isolated and struggling financially, into a fictitious criminal organization, befriended him and compensated him for fictitious jobs. Law enforcement eventually secured two different confessions from the accused: a ‘bald-faced’ confession to an undercover police officer, and another in the presence of ‘Mr. Big’ – the head of the fictitious criminal enterprise – after an interrogation. Despite the highly pressing and substantial public interest in having the accused prosecuted and the centrality of the Mr. Big confession to the Crown’s case, the Court ruled in favour of the accused.
In particular, the Court found that the accused’s confessions were inadmissible because the police breached his s.7 right to silence under the Charter. In arriving at this conclusion, the Court dedicated a large portion of the decision to flagging all of the hazards and risks that are intrinsic to Mr. Big Operations. These include the fact that the operations put suspects in oppressive settings, provide them with inducements, subject them to veiled threats, and inevitably sully their character by involving them in ‘simulated’ organized crime operations.
In sum, the Court explained, Mr. Big Operations frequently generate confessions which are plagued with either a significant lack of reliability or carry a highly prejudicial effect on the proceedings – fertile soil for wrongful convictions.
To fertilize this soil with sturdier protections for the accused’s right to trial fairness, the Court established that any confession obtained from a Mr. Big Operation is presumptively inadmissible. In rebutting this presumption, the Court laid down two distinct evidentiary gates that the Crown must overcome.
The gates erected by Justice Moldaver set the bar high for Mr. Big Operations to yield the prosecutorial value that the state had previously extracted from them. The margin for error is narrow and for many law enforcement agencies, it makes the investment in police resources incommensurate to the risk of having the confessions procured made inadmissible at trial. For all intents and purposes, this decision is a stark contrast to the tenor of the judgement in Mackenzie. It serves as strong evidence that, in the right circumstances, Moldaver was willing and able to lean towards securing individual liberties, even if meant stymieing law enforcement operations.
Sexual Assault Survivors
“The criminal trial process can be invasive, humiliating, and degrading for victims of sexual offenses, in part because myths and stereotypes continue to haunt the criminal justice system.” (JJ, para 1).
Shortly after Justice Moldaver officially stepped down from the SCC, Sean Fine of The Globe and Mail penned an op-ed reflecting on the life and career of Moldaver, titled “Justice Moldaver, outspoken champion of sexual assault complainants, has retired”. Fine goes through a series of anecdotes and examples of Moldaver’s advocacy for survivors of sexual assault navigating the criminal justice system, but one point best sums up this sentiment:
“Thirty-seven consecutive sexual-assault cases have been decided in favour of the prosecution at the Supreme Court, stretching back four-and-a-half years, and Justice Moldaver wrote some of the most important decisions.” (Fine, The Globe and Mail)
Nowhere is Justice Moldaver’s specific sensitivity to the experiences of sexual assault survivors in Canada’s courts more evident than in his 6-3 majority decision in R v JJ 2022 SCC 28 (“JJ”). At the heart of JJ was s. 278.92-278.94 of the Criminal Code (“impugned provisions”), introduced by Parliament in 2018. These provisions created specific procedures and criteria that have to be followed and met before private records concerning the Complainant that are already in the hands of the accused, can be admitted as evidence at trial. The accused alleged that the impugned provisions violated inter alia their Charter right to a fair trial. It was now in the hands of the Court to make a determination on the issue.
Justice Moldaver, writing for the majority, upheld the entire statutory framework as constitutional. In coming to this conclusion, the Court took an unexpectedly bold stance in favour of the rights of the Complainant – a participant in the trial process who is neither a state actor or an accused person. Justice Moldaver went beyond the binary that characterizes the state-citizen relationship and provided the strongest expression of his case-dependent, context-sensitive approach to criminal-law related adjudication. He began by affording judicial recognition to the unique role of the Complainant in the trial process, holding that the
“The broad principle of trial fairness is not assessed solely from the accused’s perspective; fairness is also assessed from the point of view of the complainant and community” (JJ, para 125).
Nevertheless, Moldaver tempered the anxieties of those who may see an acknowledgement of the Complainant’s stake in the proceedings as an impermissible transformation of their role in the trial process:
“This limited standing on the issue of admissibility, however, does not turn complainants or their counsel into parties, much less quasi-prosecutors, usurping the role of the Crown on the ultimate issue of guilt” ( JJ, para 178)
Despite the litany of issues counsel for the accused raised with respect to the impugned provisions, including its implications on the accused’s right to full disclosure, an independent prosecutor, and to cross-examine, the Court upheld the entirety of the statutory framework – a powerful expression of it’s, and particularly Justice Moldaver’s, concern for the rights of sexual assault survivors.
A Critical Perspective
Benjamin Berger, a Professor of Criminal Law at Osgoode Hall Law School, provided his thoughts on Justice Moldaver’s time on the Court to The Globe and Mail last year:
“During Justice Moldaver’s time, the court stressed broader societal interests in the prosecution of crime, expanding police powers to detain and interrogate suspects” (Berger, The Globe and Mail).
Professor Berger may well be right about the broader direction the Court had been trending toward during Moldaver’s tenure, but it is likely in spite of, rather than because of, Moldaver’s jurisprudence. When Ankita penned her biography of Justice Moldaver for The Court nearly four years prior, she relied on a quote from Justice Moldaver, provided to The Lawyers Daily in 2017, that best characterized his difficult to map pattern of judgements at the SCC. It is as follows:
“If we were to ask what it is, we expect from our criminal justice system there are four thoughts that come to mind. … First, I want a justice system that delivers quality justice in a timely and efficient fashion. … We must guard against the criminal law becoming little more than an interminable game. We must strive to achieve a happy medium between process and truth and justice. … When the balance is lost, our justice system suffers, and we run the risk of losing the confidence and respect of the people we have been chosen to serve. … Second, I want a justice system in which the guilty are convicted, and the innocent, or those who may be innocent, are set free. Third, I want a justice system that is concerned about — not obsessed with — wrongful convictions and that takes reasonable steps to avoid them. And fourth, I want a justice system that is concerned about — not obsessed with — our becoming a police state and that takes reasonable steps to prevent this from happening” (Moldaver, The Lawyers Daily).
And that, I would wager, is the gist of it all. A jurist who is constantly consulting an inventory of values, principles, and norms that, where the circumstances necessitate, take primacy amongst each other. A jurist who, in a time where all facets of our constitutional order, including our judiciary, further polarized towards the seams, decided to ride against the wave, even if it meant his decisions did not march in lockstep with one end or the other. A jurist who undoubtedly left an indelible footprint on Canada’s highest court.