Ultra Vires


UV Interviews Supreme Court of Canada Justice Michael Moldaver

Note – This interview has been edited for length.

Patrick Hartford: Thank you very much for coming.

Justice Moldaver: It’s a great pleasure.

P: As a U of T law grad, how much do you think things have changed at the faculty since you’ve graduated?

M: Well, the facilities haven’t changed very much, I can say that, (laughs) but I guess they’re in the process of changing. I know it’s still a marvelous law school.

One of the things that causes me to say that life is unpredictable is that my first year [faculty] mentor at law school was the Governor General, David Johnston. He looked after me and others in our first year, when we were all nervous and uptight, and he was a wonderful man – couldn’t have been nicer. Fast forward something like 45 years and on the day my appointment came through, he signed the order of council for the Supreme Court of Canada, and he sent me a personal email saying congratulations.  It was a very special moment. So I have good memories of this school.

P: What were you like as a student here?

M: I was non-descript. I did my thing and didn’t really shine at anything. In fact, I stood in the bottom quarter of my first year at Christmas Exams, which fortunately didn’t count – I don’t know if they still don’t?

P: They still don’t.

M: I stood in the bottom quarter and failed torts. I went home at Christmas and told my mom and dad that law school was not for me and that I’d like to go into my father’s business. I got no sympathy whatsoever – well I got sympathy from my mother, but not from my father. He put me back on the first bus back to Toronto [from Peterborough] and said “You haven’t been working hard enough, get to work”

I didn’t appreciate it at the time, and even to this day I don’t appreciate it (laughs). But I came back. It really wasn’t that I hadn’t been working.  I had been working, I just didn’t know how to write a law school exam. I was under the mistaken belief that someone might actually want an answer. They don’t want answers, they just want issues. Once I learned that it didn’t matter what the answer was, that you just had to put out the issues, things got a little better.

There was one other little wrinkle in first year with the contracts exam.  I never really did understand contracts – and may not until this day (laughs). The exam was maybe two and a half hours, and for the first 45 minutes I went numb. I couldn’t see the page. I couldn’t read the questions. I was absolutely numb. I saw my year going right down the drain. Somehow I managed to put it together and ended up with a C and that was fine (laughs). And I moved on. 

P: It’s the worst when you see everyone else writing or typing and you just sit there – 

M: It’s just panic city.

P: Were you in any clubs or extracurriculars?

M: Nope, I wasn’t in any clubs.

P: Whenever you’re mentioned in the [newspaper], they refer to you as the crim guy. Did you like criminal law right way or was that something that came later?

M: That’s an interesting question because – well, some might find it interesting if they have nothing else in their life (laughs) – but I loved criminal law here. The first term was taught by Martin Friedland, I don’t know whether you would know of Marty Friedland, but he was a great scholar in criminal law. 

He went off at Christmas to Australia on sabbatical and John Willis came in as our teacher. He was one of the best professors I’ve ever had. He taught the whole criminal law in first year with one sentence on the board. We didn’t have to read any cases, we didn’t have to read any law. He just taught us from one sentence that was written on the board, that had mens rea, actus reus, the whole bit. Mind you, in those days we didn’t have a Charter, so things were easier (laughs). 

But the long and short of it is, I loved criminal law but I also loved real estate.   I was, believe it or not, torn between those two. I had actually planned, when I finished law school, to go back to Peterborough, and practice with my brother, who did commercial real estate. And then things changed at the end of third year.

P: What did you spend your summers doing?

M: I worked at a law office in Peterborough, called Howell and Fleming, where I searched titles all summer long. It was a really fun experience, in part because I enjoyed searching titles, but more so because there were a whole lot of students just like me and we had a ball. We had a really good time.

P: If you don’t mind my asking, what was tuition back then? This year we hit $30,000.

M: That’s a very good question because I can answer it this way. From the money I made in the summer I was able, always, to pay my tuition. And my father, to his great credit and my gratitude, paid my room and board. So I could not have saved any more than about $1000 in the whole summer and that was enough to pay my tuition. Things have changed, a little bit, I think.

I get a little bit discouraged just thinking about the cost. I have a daughter who is hoping to write her LSAT shortly and get into law school. But the prospect of her coming to this university is one that would probably bring me on the brink of bankruptcy (laughs).

P: Was there pressure to work downtown when you were here? 

M: it was a very different experience then, I can’t quite explain it.  I got into this law school with a B average out of Arts. They wouldn’t even look at me today. We didn’t have to write an LSAT when I came through, so that was another thing.  When I graduated from here, we had the pick of virtually any downtown Toronto law firm. In fact, they wanted to recruit us. Essentially you could pick your spot. And I wouldn’t say that there was necessarily pressure to stay in one of the downtown firms.

I had decided to go back to Peterborough, but things changed at the end of third year and I had an opportunity to article with someone called Arthur martin, who later became Justice Martin at the [Ontario] Court of Appeal. That changed my whole experience and I ended up practicing criminal law here in Toronto.

P: You said something changed in third year, was it something in particular?

M: I call it a fluke. In third year I stood first here and that’s what changed things. It gave me the courage to contact [Arthur] Martin, to see whether or not he would consider hiring me as an articling student. And as it happened he had a vacancy. I went with him and decided to try my hand at criminal law in Toronto. That’s how life changes – overnight, just like that.

P: How’s your French? That was something you’ve said you’d work on.

M: C’est un plus meilleur. It’s a little bit better. I’m taking lessons and I’m trying to do some immersion. And I listen to French radio when I drive into court each morning and when I come back. It’s not an overnight process, but I’m going to do the best I can. I’m considerably further ahead than when I came to the court. Am I able now to hear an appeal in French? No. Will I be next year this time? I make no promises, but I think I’ll be much better positioned.

P: Do you want to work until the [mandatory retirement age] of 75?

M: That’s a good question. I’m not sure. I will stay there as long as I feel I can make a contribution, and as long as my health holds out, and as long as my legs hold out. And by that I mean, this is not a job for people who are looking to semi-retire. It’s a heavy, heavy load and I’m very honoured to be there. But I don’t want to overstay my welcome. If there comes a time that I feel I should be going and making room for someone else, I will do it.

P: There was an op-ed in the Globe, by Emmett Macfarlane, a political science professor at Waterloo, about L’Heureux-Dubé’s comments on the Quebec Charter [of Values]. Obviously I won’t ask you to comment on the charter itself, but in terms of retired justices speaking out on policy matters, do you have an opinion one way or another?

M: I haven’t given it a lot of thought. Personally, I would think long and hard before I would engage in that kind of comment or discussion or debate. Am I in the least bit critical of Justice L’Heureux-Dubé – forget about content – but just the fact that she spoke out? That to me is her perfect right and I respect her for that. To a certain extent, there has to be a bit of “to each his or her own”, and if there’s an issue that you feel very strongly about, perhaps there is room to make comment. But I think we have to proceed with caution.

P: Was it a big transition moving to Ottawa from Toronto?

M: It was a huge transition. I have wonderful friends here, I spent fifteen years on the Court of Appeal. And I, quite frankly, was not expecting to get the appointment.  When it happens, you have to move very quickly. I spent my first six months living in the Minto [Hotel] before my wife could get there and we bought a home. It was a bit lonely, and it was a bit difficult fitting into the new surroundings and fitting in with the new colleagues and doing a very different type of work than I had been doing on the Court of Appeal. And I was missing dear friends and colleagues from Toronto who had been a major part of my life for so many years. So was it easy? No, it wasn’t an easy transition.

P: And what’s the working relationship like with the other justices? Are you close as a group?

M: I think we’re close and I think everyone respects each other. But we also recognize that the work is not easy.  Issues are raised upon which reasonable people can and do disagree, and every one of us cares very strongly about what he or she is doing. You have to be able to separate the professional from the personal. Think about it, you’re with 8 partners in a law firm, and 30 or 40% of the time, your partners are your opponents. Not only are they going a different way on a case than you are, but the matter is going public across Canada. You have to be able to separate out the professional part of the job and be friends at the end of the day.

P: In the last few years, they’ve had the MP’s asking question of the [SCC] appointments.  Do you think this is a positive development? Some people say it’s moving us in the direction of the States, other people say it’s just a formality.

M: I’m not sure it’s my place to comment on it. It’s a decision made by the government, and to the extent the government is of the view that it might give the citizens of this country a better understanding and knowledge of a potential appointment to the Supreme Court, I wouldn’t disagree. As to whether it’s becoming more political than less, or moving towards the direction of the United States, I don’t feel that’s for me to comment on. I certainly do know, having watched yesterday’s proceedings, that care is taken to make sure that it doesn’t devolve into a political debate.

P: Today is the Grand Moot. Is there anything in particular you’re looking for from the mooters?

M: I give them tremendous credit. It’s probably harder to do what they’re doing today than actually doing a real case. And by that I mean, for most real cases the court room is virtually empty and [the lawyers] just make their submissions and move on. But today, [the mooters] are surrounded by colleagues and professors and perhaps members of their family. It’s a lot of stress and I give them so much credit for just standing up to the plate. I suspect they have worked tremendously hard and will do a great job.

P: Thank you for sitting down with us. It’s been a pleasure.

M: Thank you. I wish you good success, and I look forward to seeing you in court, as they say. 

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