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This article was published 18/10/2011 (2863 days ago), so information in it may no longer be current.
As the beleaguered and oft-misunderstood Don Cherry might say of Michael Moldaver, "Good Peterborough boy."
I mean by this just what Cherry means when he says that sort of thing: That the new appointee to the Supreme Court of Canada hasn't a pretentious bone in his body and thus remains true to his Ontario hometown; that he has great regard for the common sense of the ordinary Canadian; that while he's a splendid legal writer his judgments are nonetheless rendered in plain English; and that he has a fine nose for even the faintest odour of B.S.
Moldaver is one of two appointees to the country's high court who were announced Monday by Prime Minister Stephen Harper.
The other, a colleague from Ontario's Court of Appeal, is Justice Andromache Karakatsanis, who may turn out to be a terrific choice but is a much more unknown quantity.
On the Appeal Court for not even two years, her chief strengths are touted to be her command of languages (she is fluent in English, French and Greek), her gender (she keeps the Supreme Court's bench strength of women at four) and her big-C Conservative connections (she was Ontario's deputy attorney general when Jim Flaherty, now the federal finance minister, was the province's attorney general).
In short, on that talent-heavy Appeal Court, where big brains such as David Doherty and David Watt and James MacPherson work, Karakatsanis was hardly a star; Moldaver was.
His appointment is nonetheless seen as somewhat controversial because of his long-standing criticism that the powerful (and very delicate) defence bar bears some blame for the growing length of criminal trials, mostly by using the Charter of Rights and Freedoms willy-nilly to challenge evidence.
In his speech to the Criminal Lawyers Association six years ago, Moldaver was also critical of Crown counsel, noting they may be over-charging, refusing to yield to reasonable defence requests and "pushing the evidentiary envelope" beyond what's needed.
But it was his comments about defence lawyers — that those who still "throw up a medley of charter issues in the hopes that one or two might stick" should realize "those days are gone" because most charter issues already have been litigated around the block — which caused a furor.
About a year later, the judge was speaking again, and wryly referred to his earlier remarks.
What he'd originally suggested — that defence lawyers be more discerning in their use of pre-trial charter motions — was "hardly an earth-shattering proposition, or so I would have thought.
"Hardly one, I thought, that would lead a senior member of the defence bar to describe my address as 'shocking' and a leading academic to chastise me for viewing the charter not as a 'vital living tree' but as 'a weed to be stunted.' "
Moldaver then duly proclaimed his regard for the charter, but also said, in part, "Do I have a problem with counsel who trivialize and demean the charter and who use it, not as a means of promoting justice, but as a means of delaying and in some cases obstructing it? You bet I do.
"Do I have a problem with counsel who clog the courts and tax an already overburdened justice system by bringing charter and other applications that are baseless? Absolutely."
He then repeated what one defence lawyer told him in response to his offending remarks: "And I quote, 'Judge, you only have a problem with long criminal trials because you are on a fixed salary'" — in other words, such trials can be a cash cow and that if Moldaver were still a working lawyer, he'd shut his yap.
"And for those who think that way," Moldaver said, "the charter is like a gift from heaven. It is the godsend of all godsends."
He said what he wants to see are changes to "simplify the criminal law, and in the process, restore the public's faith and confidence in our criminal justice system."
One of those changes is that which "can only come about if we are prepared to stop treating jurors as aliens and start treating them as 12 intelligent people from 12 different walks of life who bring with them 500 or 600 years of collective life experience, wisdom, common sense and good judgment."
To that end, Moldaver said, he imagines a day when trial judges understand that jurors are intelligent "and that our job is to alert them to dangers, not hold their hand every step along the way" and thus judges "will not wince at the prospect of charging on such things as similar fact evidence and the co-conspirator exception to the hearsay rule."
These are two of the most common legal principles judges cite when keeping critical evidence from jurors. The rationale is that if jurors are told that, say, a person accused of sexual assault had previous convictions, or if they hear a former buddy testify against his partner, they will be inflamed or prejudiced beyond all reason.
Judges, he seemed to be saying, should trust jurors more, not be afraid to let them hear such evidence and be content merely to instruct them on how they may, and may not, consider it.
Big nuts, plain talk, brain the size of the Prairies, respect for the smarts of the ordinary Joe: Holy smokes, how did that guy get to the Supreme Court?