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A judge with moxy

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There was good news for the Supreme Court of Canada earlier this week when the prime minister announced the nomination of Ontario Court of Appeal Justice Michael Moldaver to the country's highest court.

Highly regarded, the impeccable jurist is no wallflower. Instead, he's well-known for his moxy on the issue of Canada's courts.

"I've had enough," he said. "We are mad as hell and we are not going to take it anymore... I want to see real change."

And those aren't the words of some Johnny-come-lately. Moldaver has nearly four decades of sound legal experience.

His mad-as-hell remarks were offered to a justice summit attended by the legal world and none of his words were minced. He made clear he and many of his like-minded colleagues have had a gut full of the shenanigans in the country's courtrooms. He's watched in frustration as judges' roles and influence become irrelevant while the country's courtrooms are hijacked, often by counsel with their own agendas.

Justice Moldaver has no qualms about being frank with either side, and was bang-on with his assertion that many of the courts' problems are rooted with lawyers "who trivialize and demean the charter" by using it to delay and obstruct justice.

His patience is tried by those who choke the life from our overtaxed courts with baseless charter arguments, the fundamentals of which have been worked out years ago by the Supreme Court. Such nonsense, he says, results in longer trials and backlogs that deprive worthy litigants of reasonable court access while unjustifiably high billing hours drain the legal aid resources.

Will this appointment make everyone happy? Not likely.

Arguments about clogged courtrooms and the glacial pace of Canadian justice are usually rooted in dollars and cents. More money for judges, more money for legal aid lawyers, more money for more courtrooms.

Cleaning up his own backyard didn't sit well with a member of the criminal defence bar in attendance at that summit who childishly countered, "Judge, you only have a problem with long criminal trials because you are on a fixed salary."

It's those kind of comments that feed Moldaver's frustrations.

Simply put, too many have bellied up and chosen to lounge around the charter trough. For those lawyers, Moldaver says, "the charter is like a gift from heaven. It is the godsend of all godsends."

His thoughts found favour with some of his brother and sister judges who see courtroom control lost to delay, inefficiency and waste, and, as he entered retirement, outgoing Supreme Court Justice Ian Binnie echoed Moldaver with a call for the return of sanity.

The answer, says Moldaver, lies in a judge's authority and strength.

Limit the common and unnecessary long-windedness in oral arguments. Stop giving adjournments on demand and above all bring an end to the entrenched culture of delay that's used to subvert justice. Delay is a gangster's best friend.

In addition, he's said juries should be treated as responsible adults with real life experience who can be trusted with their oaths. Not like kids whose hands must be held while lawyers waste a court's time debating a jury's ability to handle the whole truth with all of its warts and atrocities.

Justice must be fair, straight and reasonable. Some think it can be perfect. And in the futile quest, some have bent over so far they have fallen, bringing justice and public confidence to the brink of collapse.

One judge even composed an appeal-prevention, tick-off-the-box list of 115 things to do before a trial even begins.

Moldaver is known as a staunch defender of the charter and he has little patience with anyone who abuses it. He notes our system is the world's envy but that "complexity and prolixity are the twin demons that bedevil it."

For those who have lost faith in our courts and righteousness, Moldaver and other like-minded judges offer hope that fairness for all will once again become the corner stone of justice.


Robert Marshall is a retired Winnipeg police detective.

Republished from the Winnipeg Free Press print edition October 22, 2011 J6

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