Law Times

Page 4 September 23, 2013 Law Times • NEWS Moldaver concerned about how justice system treats juries BY MARG. BRUINEMAN For Law Times MIDLAND, Ont. — As someone who has seen Canada's justice system from many different perspectives, Supreme Court Justice Michael Moldaver believes it has lots of work to do when it comes to handling juries. "It is the failing on our part that we have not been able to yet simplify jury instructions to what they should be," he said, referencing a saying that 90 per cent of what they hear is for the Court of Appeal and 10 per cent is actually for them. Moldaver made the comments during an event in Midland last week on a day in the life of a Supreme Court judge. If jurors get the verdict wrong, he said, the blame lies elsewhere. Either they didn't have the evidence they should have had, heard things they shouldn't have or had incorrect instructions on the law. But, he said, the system continues to treat them like they're from Mars. In remarks that alternated between serious and lighthearted, the intimate stage he spoke from at the Midland Community Centre served as the site of a reunion of sorts for the University of Toronto law school class of 1971 as an audience heard about the life of a Supreme Court of Canada judge on Wednesday. Moldaver took a seat on a quaint living room set across from lawyer Fred Hacker and spoke in front of 140 people, many of whom are members of the legal community and had travelled from across central Ontario. Hacker introduced the judge as a fellow law school classmate and "somebody who's never lost his hometown roots of Peterborough where he grew up." He then walked Moldaver through his career as a criminal lawyer, a trial and later an appeal court judge, and finally a member of the Supreme Court bench. Moldaver Fred Hacker, left, played host to Supreme Court Justice Michael Moldaver at the Midland Community Centre last week. Photo: Marg. Bruineman occasionally touched on some sombre points, such as helping a decent man overturn a kidnapping conviction on appeal only to hear of his death months later in a bus accident. He also talked about the high points, such as serving on the Ontario Court of Appeal when it found Steven Truscott's murder conviction to be a miscarriage of justice. One of three children of a scrap-metal dealer, Moldaver described himself as an ordinary guy in high school who didn't do much. He headed off to university to study political science before going to law school where he had a bit of a shock as he failed torts and he nearly quit. But his father, whom he described as having in one finger all of the wisdom Moldaver himself possessed, encouraged him to push on and work hard. He ended up graduating as the top student. He also touched on his career as a criminal lawyer working in Toronto with some of the country's best defence counsel. 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PATENTS: PRACTICAL STRATEGIES FOR PROTECTING YOUR TECHNOLOGY November 12, 2013, Toronto, Ontario November 18, 2013, Calgary, Alberta For more information or to register for these seminars, please visit www.lexpert.ca/events *webcast option not available Lexpert_LT_Sep23_13.indd 1 www.lawtimesnews.com began working on that matter, Moldaver did the other work that came into the office. "I spent some incredible years with some brilliant criminal lawyers. I was doing my first murder trial the first year I was in practice. He should be getting out just about now," he said with a chuckle. In 1990, he became a trial judge, a job that taught him there was no substitution for hard work and lots of preparation. And later when he became a judge of the Ontario Court of Appeal, he experienced a different perspective. "As an appeal judge, I could cross-examine lawyers all day long. And that was lovely," he said, eliciting another laugh from the audience. What happens behind closed doors at the Ontario Court of Appeal differs from what happens at the Supreme Court. At the appeal court, the judges go out, deliberate, and sometimes reconvene later. Often they're able to deal with the case at the time. At the Supreme Court, the judges have a conference and the chief justice will call for a vote. She'll then appoint a judge to write the decision. Often, the Supreme Court will hear issues related to the Charter of Rights and Freedoms, although not nearly as frequently as it did in the 1990s. And Moldaver has been critical of people misusing it. "The Charter is a magnificent document. It is a model for constitutional democracy across the world. What gets me annoyed is when it's used not for the purposes that it's meant for," he said. Audience members appreciated the rare, casual insight into the life of a Supreme Court judge. Justice John McIsaac, a designated bilingual Superior Court judge in Barrie, Ont., left his training in Quebec City early to hurry home and witness the event. "I think it's wonderful for people like Justice Moldaver to make himself available," says McIsaac. Martha MacDonald, a tax litigator with Osler Hoskin & Harcourt LLP, found it a unique event worthy of the two-hour drive from Toronto. "I came because it's a rare opportunity for a Supreme Court judge to speak about growing up in Peterborough, going to law school in Toronto, practising as a lawyer, and then having a long career as a judge," she says. LT 13-09-17 6:30 PM

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