Justice Moldaver on lawyering, life at the SCC, and Judge Judy

Clara Rozee (3L) and Nick Reynolds (2L)

On October 1, Justice Michael Moldaver came to the U of T Faculty of Law to sit on the panel for the 2015 Grand Moot. He sat down with us before the moot began for a wide-ranging discussion on the legal profession, life as a Supreme Court justice, and his aspiration to someday follow in Judge Judy’s footsteps.

NR: Did you do any mooting in your time as a student here?

Not other than the compulsory moot. I think we had the compulsory moot in first year, but not beyond that, I was too terrified.

CR: You obviously got over that fear eventually.

Well, I don’t know. I never got over the fear of appearing in a courtroom, whether it be the Court of Appeal, or the trial courts. I always had butterflies and a great big lump in my throat just before the judge or judges came in.

I only had limited experience in the Supreme Court. In around 1978, I went there for a leave application, and got screamed at so badly, I crawled out of the court with my tail between my legs. I came back to Toronto, and I spoke to my partners at the time, and said, “I’m never going back to that place.” And I never did. I never went back there. Until all this happened. (Laughs.)

CR: Chief Justice McLachlin said what she tries to do as a judge is put herself in the shoes of the parties. She describes this as “conscious objectivity.” If you had to describe your task when it comes to judging, how would you?

I agree with the Chief Justice. On a somewhat more practical level, I guess certainly at this court, it’s doing a lot of listening, and being particularly careful about how often you interrupt, and trying to make your questions meaningful.

It’s important to come in well prepared. I’m one of nine judges on this court, and in most cases counsel only get an hour to make their argument, so by and large we do a lot of listening, punctuated by the odd question. You sure don’t want to take things over, and you don’t want to be seen by your colleagues to be trying to take over, because they have questions too.

I’m just telling you from a very practical point of view what goes on in the courtroom. I’m always thinking about where an argument is taking me. I may have come in with a certain point of view, but if there’s a compelling argument that starts to lead me down a different path, I remain open to that.

At this court, as I said, there’s a lot of listening. At the Court of Appeal, where I spent fifteen years, I was much more involved in the questioning. We had time to ask questions. There were only two other judges. It was more acceptable to get involved in the case, and to actively engage with counsel.

Justice Moldaver at U of T Law's 2015 Grand Moot (Photo by Rona Ghanbari (2L))CR: What has it been like to move through the different levels of court? Have you had to adapt?

Yes, I’ve had to adapt. It was a huge change for me going to the Supreme Court. I had fifteen wonderful years on the Court of Appeal, and great colleagues, and good work. It’s been a major adjustment for me to work with eight other colleagues as opposed to two other colleagues. Also, the nature of the work at the Supreme Court is really quite different than the great bulk of the work that we see at the Court of Appeal.  Most of the Court of Appeal work is error correcting, and some jurisprudential. At the Supreme Court, it’s virtually all jurisprudential, with very little error correcting.

More importantly, it’s being in a position, one of nine, to try and figure out what’s best for Canadians, what’s best for Canada. And while we are constrained by stare decisis, that doesn’t mean we’re frozen in time. We have to look at where we are, at any given moment and decide, within the bounds of stare decisis whether change is required. The Carter case is perhaps a recent example of how the Court went from a 5-4 decision 20 years ago to a unanimous 9-0 decision 20 years later.

Here, you feel the weight of the country on your shoulders. There are a lot of sleepless nights when you lie awake in bed, eyes wide open, wondering whether you are doing the right thing.

Now having said that, this is Canada, and there are certain parameters within which we all work, and I don’t think any individual case is necessarily going to set this country on its head or last until the next century. Everything that we do is ultimately reviewable, and if it turns out that we’ve taken a wrong turn, then within the bounds of stare decisis, we can and do engage in our own error correcting, shall we say. We’re all just human, that’s the bottom line.

NR: You’ve spoken about your professional relationship with the other justices. Have you developed any personal relationships with your colleagues?

Yes, of course. Since I was last here [at the U of T Grand Moot], there have been significant changes in the composition of our court. I’ve gone from being number eight on the list to number four. There have been several changes and I’m extremely happy with my new colleagues from Québec. I have a very close relationship with them. I just met Justice Brown recently, from Alberta, and he’s very personable, very young. He’s only fifty; I feel like his father! But he’s just a truly decent kind person, and warm— very bright, very able. So I’m looking forward to building a relationship with him as well.

Is there some tension at times? Of course. But you’ve got to try to separate the personal from the professional. Every one of us up there really cares about what we’re doing, and we tend to be Type As, all of us. It can get pretty tense at times, because if you really believe that the law should be x, and you’ve got three other colleagues that agree, and four that don’t, and you’re waiting for the fifth one to make up his or her mind, that can lead to tension and anxiety and so on. At the end of the day, you’ve got to try to separate the business side of things from the personal.  Sometimes it’s not easy, but it’s essential if you hope to survive.

CR: You hear about the unlikely friendships on the US Supreme Court. Justice Scalia and Justice Kagan and their hunting trip…

Absolutely. And Justice Scalia is very close to Justice Ginsberg too, even though they’re diametrically opposed philosophically. That doesn’t necessarily translate into a bad relationship or a lack of mutual respect.

The simple truth is, we’re dealing with issues about which reasonable people can and do disagree. That’s the nature of our work. There are bound to be disagreements. If you can have your disagreements, not get too personal in terms of attacking your colleagues, and then go out and have a few drinks and dinner together, that’s the way it should be.

CR: Speaking of going out for drinks and dinner, how do you unwind in your free time?

Dirty martinis. (Laughs.) With olives. Unfortunately, I’m not a hobby person. Unlike some of my colleagues who for example, like to golf, I don’t. I did once, but I’m so bad, I don’t need more stress and frustration in my life. I tend to just go home, turn on the news, and before you know it, I’m fast asleep.

On the weekends, I’ll work from about six in the morning until two o’clock in the afternoon, and then my wife and I will just goof off. Sometimes we’ll have a dinner party at night, sometimes we’ll just go to a movie and then out for dinner, sometimes we’ll go for a walk on Rideau Canal. I like nature—I’m not a camper or anything, but sometimes we’ll go into the Gatineau Hills and walk around up there. Nothing terribly exciting.

NR: You were recently in Stratford for Hamlet’s Appeal. Are you a fellow thespian?

If you’re asking if I ever acted, I did…I acted in high school. Primarily because my mother wouldn’t let me play football, or hockey, so I had to do something else. I acted in two plays. One was A Man For All Seasons, and I was hoping to get the lead role, I was hoping to be Thomas More, but my English teacher had something else in mind. She made me Cardinal Wolsey —a perfect role, I think you’d agree, for a nice Jewish boy from Peterborough—who had never seen the inside of a confessional but probably should have!

Mercifully my part as the Cardinal ended in the first act because I got killed in short order. But I messed up my lines both nights. That caused me to realize that my acting career was probably going nowhere. Added to that was the fact that the year before we did George Bernard Shaw’s Caesar and Cleopatra. Again, I was kind of hoping for Caesar, but ended up playing the role of the palace eunuch.

CR: No!

Yes. So I realized there must be something better than playing the role of eunuch one year and Cardinal the next. Having said that, when this job is done, I would really like to become the Judge Judy of Canada. I can only hope!

NR: And how was Stratford? Did you enjoy it?

It was a very interesting experience on a number of levels. I’d never read Hamlet before. We didn’t study it in high school. Even if I had, it would have been 50 years ago, or more, so I wouldn’t have remembered a thing. I had to do a fair amount of reading to get ready for the Stratford Moot. One of my difficulties with Shakespeare was that I rarely ever understood a word he said. As I remarked at Stratford, if it weren’t for Cole’s Notes, I’d still be back in grade ten.

In the end, I think it went pretty well It was kind of fun. There were 1200 people there, and I thought the counsel, Brian Greenspan and Marie Henein — two excellent criminal lawyers — did extremely well. But I think they were feeling quite stressed beforehand, and who can blame them.

I was always scared to death before I went into the courtroom, especially on a murder case. I’d wake up every day and I’d want to just pull the covers over my head. I often woke up thinking why didn’t I go into dentistry? And what I mean is that—and I don’t mean to disparage dentists — but when I think of dentists, I think that as long as they have some skill and do some preparation, chances are they’re going to beat the tooth. There’s probably about a 99.9 percent success rate. That’s one of the differences between being a dentist and being a trial lawyer. You can prepare to the nth degree, you can do a sparkling job in the courtroom, you can be absolutely brilliant, and you can still lose. There’s no certainty in the courtroom.

Going to court, going to trial on a major case was not a fun experience, and I always found that I lost a piece of myself in the courtroom, win lose, or draw. Every major trial took a toll. Mind you, it only takes a toll if you care about what you’re doing. If you don’t care about what you’re doing, if you see your role as simply being there and seeing that the I’s are dotted and T’s are crossed, then I think you can sleep better at night. I didn’t see that as my role.

I wouldn’t take on a major case, a murder case, for example, unless I believed or had a reasonable doubt in the innocence of my client. The reason for that is that if I didn’t believe myself, I couldn’t sell it to anybody. If I were going to argue successfully in front of a jury, that jury had to feel it in me. They had to know that I believed, and that I wasn’t trying to sell them a bill of goods.

Now the downside of that is that if you really care about what you’re doing, it hurts more when you lose. I used to suffer my losses far more than I would relish my wins. When I lost a big case, you wouldn’t see it if you met me on the street, but I would sort of punish myself for days, and sometimes weeks  at a time, thinking where did I go wrong, what could I have done, what should I have done differently. Should I not have asked that question, maybe I should have asked this question. All these things go through your mind. Losing a client to the penitentiary for life is not a fun experience.

I never saw [appearing in court] as a performance. The worst thing I could be doing was performing. I was being me! I think that any lawyer who tries to be someone else when they are in the courtroom…(a) it’s very risky, and (b) it’s a recipe for failure. Juries are smart. You take twelve people from twelve different walks of life, and you’ve got between four and five hundred years of life experience, common sense, and judgement. If you think you’re going to pull the wool over their eyes because they’re not legally trained, think again.

For me, I wasn’t acting. I really felt that it would be an injustice if my client was convicted. So, at times, did I act with passion? Absolutely. Did I engage in vigorous cross-examinations? Absolutely. But I wasn’t performing, I wasn’t acting, I was just being me.

CR: What’s the best piece of advice that you never got in law school?

I don’t know what goes on in law schools today so much, so I can only comment about my experience. It was important to learn the law, and go through the cases, fact, issue, ratio, whatever they do, and you had to have a basic understanding of the law.

In first year at U of T, we had Christmas exams, and fortunately they didn’t count, because I stood in the bottom quarter of the class and failed Torts. I traveled home to Peterborough hoping for a little tender loving care. I went to my father and told him I wanted to quit law school, that I wasn’t cut out for it, and that I wanted to join him in his scrap metal business. And he had no sympathy whatsoever—he accused me of not working hard enough. He put me on the next bus back to Toronto, and said “You get to work. I don’t want to ever hear about you quitting law school. Get working!” That was basically his message to me.

He would not accept that I had been working. Indeed, I’d been working harder than I ever had in three years of Arts, believe me. In Arts, an exam question might be: “discuss the meaning of the universe,” and you would write ten pages of fluff, and that would be it. But here, at the Law School, suddenly you’re confronted with exam questions that were often three and four pages long.

I remember in first-year Contracts, I got to the final exam, and I panicked. I went numb. I literally went numb for 45 minutes. I could not think, I could not write, and I saw the whole year going down the drain. Somehow I managed to get it together, and I ended up getting a C.  As for my father, it wasn’t that I wasn’t working until Christmas. I’d been working harder than I ever had. What I didn’t know was how to write a law school exam. I had this silly notion that somehow, somebody would like to have an answer to the question that was asked. Very dumb on my part. The only thing that mattered was the issues.  And when I learned that they were only really interested in the issues as opposed to answers, I’d basically learned how to write a law school exam and things moved along from there.

The problem was that when I went out into the real world, you have real live clients. They weren’t interested in issues! They didn’t want to hear, well you may go to jail for life, or you may walk free. They wanted to know what was going to happen to them. They wanted answers. To that extent, and I don’t claim to know, again, what goes on in law school today, I would have liked a little bit more of a practical approach that would have been more useful to me—preparing me to deal with real live people who have real live problems. To me, that was a bit of a failing.

CR: I have a question about the real world. What do you think the role of Canadian law schools should be in terms of improving access to justice?

Oh boy, that’s a huge question. I happen to think that we have a tremendous justice system, and I’ll speak primarily about the criminal justice system, although it bleeds into the civil justice system as well.

The criminal law is not a silo unto itself. Everything bleeds into other areas. So if I take six months on a trial that should have lasted three months, that means a judge in a courtroom was not free to hear a divorce case, or to hear a civil action, or whatever it may be. And because we have 11(b) of the Charter, which says that you’ve got to have your trial in a reasonable time, what happens is that criminal cases get precedence over civil and family law cases. You have long queues for civil cases to be heard, long queues for family law matters to be heard. And certainly in the civil areas, you see today ADR [alternative dispute resolution] has grown up around us, and many people are bailing out of the civil justice system because it’s inefficient, it’s ineffective, it’s wasteful. You don’t know if you’re going to get a judge that knows anything about the kind of case you’re involved in.

People are leaving the civil justice system in large numbers, which is not great for the overall administration of justice, because in part, it stultifies the development of law. If you’re doing mediations and arbitrations and so on, you’re generally not resolving critical points of law. In the criminal law field, we’ve got to stop this we/they mentality. Defense counsel and Crowns have to start acting in a responsible fashion. There’s a huge mistrust out there. The criminal justice system is functioning to a large extent on fear.

Defense counsel are afraid not to raise Charter motions even though they think there’s not much in them, because if things go badly they don’t want to be facing an incompetent counsel allegation in the Court of Appeal.

Crowns are running scared because today I don’t think that they have the discretion that they used to have. I think there are policy statements that define what they have to do or not do. Some, I believe, feel they are not supported from on high, so if they have to make a tough decision and it goes badly, and somebody walks free on a high visibility case, they’re worried that there’s not going to be someone on high there to cover their back. Everything is under a microscope today… I think that certainly in the higher visibility cases, there is a fear on the part of some Crowns to make tough calls.

Trial judges. I did murder trials—a lot of them—and they were mostly done in seven or eight days Today it’s usually seven or eight weeks and sometimes seven or eight months. There’s a lot more concern on the part of trial judges about being overturned and having to re-do the trial, so they tend to err on the side of caution. Appellate courts have to take steps to reassure trial judges that if they act reasonably and responsibly, they will be supported.

It’s a long answer to a simple question but I think it’s important for trial judges to take back control of their courtrooms and for appellate courts to support them. I also think it is critical for counsel to act responsibly and that the stakeholders in our justice system work together, in good faith, to return to a system in which quality justice can be delivered in a timely and efficient manner. So perhaps some of these issues could be canvassed at law school with a view to improving our justice system. What’s required is a cultural change and I think law schools and law students can play a role in bringing that about.

NR: We’re almost out of time, but I do have one more question. You may have read that a lot of computers and computer algorithms…

(Laughs.) Oh!

have started replacing the job of low-level workers, and we hear about this happening with document review and discovery. If this work is no longer available to junior lawyers, what do you see their role being? How might that affect the legal profession in general?

You’re way over my head! First of all, I don’t even know what an algorithm is! We got that in today’s [moot] problem. We’ve got this problem of freedom of expression, and algorithms, and servers, and service providers, and oh my god! (Laughs.) I’m a dinosaur when it comes to this stuff. But, I guess I will say, like anything else, people will have to adapt. If in fact technology is taking over some of the work that junior lawyers used to do, well, we’ll just have to find something else for junior lawyers, or else fewer people will go into law. I don’t know what the answer is because I really don’t know the mechanics of this.

CR: I guess the question is, what can a lawyer do that a robot never could?

Well, you know, you might be asking that about judges too at some point! Maybe we’ll just feed in the facts and we’ll get the answer and that’ll be it, and we’ll all be out of work. And then I’ll go into dentistry. Or become Judge Judy. She’ll always have work.