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Sunday, September 21, 2014

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Toronto judge joins Supreme Court

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Justice Michael Moldaver

TORONTO — Michael Moldaver and Andromache Karakatsanis, the two most recent additions to the Supreme Court of Canada, were welcomed to the High Court in a ceremony earlier this week.

With the appointment of Moldaver, the number of Jewish justices on Canada’s highest judicial body reaches four.

Moldaver will join Rosalie Abella, Morris Fish and Marshall Rothstein on the nine-justice court – an unprecedented number of Jewish judges, and more than even in the United States, which currently has three on its Supreme Court.

“Justice Karakatsanis’ and Justice Moldaver’s candidacies were examined through a comprehensive process,” Prime Minister Stephen Harper said in a release. “Madam Justice Karakatsanis and Mr. Justice Moldaver are exceptional candidates who have the skills and qualifications necessary to serve Canadians as judges of the Supreme Court of Canada.”

Both judges were recruited from the Ontario Court of Appeal and fill Ontario’s allotment of justices to the High Court.

Moldaver is a well-respected justice whose expertise in criminal law makes him a valuable addition to the court, said Liberal MP and former Canadian justice minister Irwin Cotler.

He combines an excellent analytical mind, personal integrity and strong writing ability, said Cotler, who was one of five MPs from three political parties who vetted a list of candidates before recommending the final two. The panel held extensive consultations with lawyers and judges to help in their assessment of the candidates.

Bert Raphael, president of the Jewish Civil Rights Educational Foundation of Canada, applauded Moldaver’s nomination.

“I think it’s a great tribute to Canada that religion shouldn’t matter, and it’s a compliment to our prime minister that he wouldn’t be concerned that he’d be criticized for appointing four Jews,” said Raphael.

In the 1960s, when he entered the practice of law, Jews could not join the Lawyers Club of Toronto, Raphael said. Many established law firms did not hire Jewish students, and Jewish attorneys often banded together to create their own firms, or they hung up a shingle and went into practice on their own, he said.

Ed Morgan, a law professor at the University of Toronto, called it “a great appointment. He’s an excellent judge. The Supreme Court needed strength in his field [of law], criminal law and the constitution.”

“I think he’s got the right temperament, a kind of middle view… He has a mildly conservative judicial temperament. He’s right in the mainstream of Ontario judges.”

Moldaver is particularly known in the legal community for his role in the Steven Truscott and Romeo Phillion cases, in which the Ontario Court of Appeal overturned wrongful convictions for murder, Cotler said.

“He wrote the judgment in the Phillion case, and he was a member of the court in the Truscott case and participated in the writing [of the judgment] by Roy McMurtry. Both were exemplary judgments,” Cotler said.

The written decision in Phillion “was a masterpiece in terms of the way he addressed questions of fact and law and matters of fresh evidence. It was a masterful judgment,” Cotler added.

Moldaver’s writings “reflected whatever we heard about him in our consultations, that he had a brilliant legal mind, that he was one of the foremost experts on criminal law in the country, that he was a very clear writer, that his judgments were models of clarity and were accessible to the general public, not just lawyers. We were told he had an excellent analytical mind and this came through clearly in the Truscott and Phillion cases,” Cotler said.

Moldaver also brings to the position admirable personal characteristics, Cotler added. “He is a person of integrity, is forthright, honest and genuine. It was reported to us he is a wonderful colleague.”

Cotler said concerns that Moldaver is not bilingual – raised by some MPs –should have been put to rest when, in a parliamentary hearing, the justice undertook to learn French. He said critiques of Rothstein, who is not bilingual, are unfounded, as Rothstein never made the pledge to study French. “That question was not put to Justice Rothstein at the time,” he said.

Morgan noted that when Moldaver practised law as a defence counsel, “he was sensitive to the rights of the accused,” and as a judge he made sure “cases moved ahead and he did not allow constitutional challenges to bog down the courts. Meritorious ones succeeded, but voluminous ones that appeared to delay proceedings” did not.

Morgan said the presence of four Jewish judges on the Supreme Court attests to the fact “the Jewish community has an embarrassment of intellectual riches… there was a lot of well-educated and talented Jewish lawyers to chose from.”

Cotler said the two finalists were recommended by consensus by MPs representing the Conservative, Liberal and New Democratic parties. The fact Moldaver’s appointment would bring to four the number of Jews on the court never came up. “I take pride in the fact that they’re Jewish was not an issue. That never arose, and I think that’s a testament to Canada that none of that arose.”

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