Reasons of the Supreme Court of Canada by Justice Moldaver

This article is a list of Justice Michael Moldaver's written judgments during his tenure as puisne justice of the Supreme Court of Canada.

2012

Statistics 11 Majority or Plurality0 Concurrence0 Other0 Dissent0 Concurrence/dissentTotal = 11 Written opinions = 11 Oral opinions = 0 Unanimous decisions = 6

Case name Issue Co-authored by Joined byR v Tse 2012 SCC 16 Whether s. 184.4 of the Criminal Code infringes the right to be free from unreasonable search and seizure under s. 8 of the Charter Karakatsanis J UnanimousR v Jesse 2012 SCC 21 Admissibility of similar fact evidence – UnanimousEntertainment Software Association v Society of Composers, Authors and Music Publishers of Canada 2012 SCC 34 Intellectual property and whether the transmission of musical works contained in a video game through an Internet download is a communication "to the public" under the federal Copyright Act Abella J McLachlin CJ and Deschamps and Karakatsanis JJR v Vu 2012 SCC 40 Offence of kidnapping and whether kidnapping is a continuing offence encompassing subsequent confinement of victim, and whether persons who knowingly choose to participate in subsequent confinement becomes parties to the offence of kidnapping – UnanimousR v Walle 2012 SCC 41 Offence of murder and whether trial judge erred in resorting to common sense inference that a person who usually knows predictable consequences of actions and means to bring them about without first considering the whole of the evidence bearing on the accused's mental state at time of shooting – UnanimousR v Prokofiew 2012 SCC 49 Co-accused's counsel inviting jury to infer accused's guilt from a failure to testify, and whether the trial judge's failure to give explicit remedial instruction in charge to jury constituted a legal error under s. 4(6) of the Canada Evidence Act – Deschamps, Abella, Rothstein and Karakatsanis JJOpitz v Wrzesnewskyj 2012 SCC 55 Application to have federal election result annulled on the basis of "irregularities... that affected the result of the election" under s. 531(2) of the Canada Elections Act Rothstein J Deschamps and Abella JJR v Nedelcu 2012 SCC 59 Whether Crown at criminal trial may cross examine an accused on prior inconsistent statements without infringing the right against self-incrimination under s. 13 of the Charter – McLachlin CJ and Deschamps, Abella, Rothstein and Karakatsanis JJR v Aucoin 2012 SCC 66 Whether pat-down search was unreasonable under s. 8 of the Charter; Whether detention of the accused was unlawful under s. 9 of the Charter; Whether evidence ought to be excluded pursuant to s. 24(2) of the Charter – Deschamps, Abella, Rothstein and Karakatsanis JJR v Yumnu 2012 SCC 73 Whether it was appropriate for the Crown to seek police criminal record checks of prospective jurors and also to provide comments on whether any prospective jurors were "disreputable persons"; Where same should have been disclosed to the accused; Whether there is a reasonable possibility that same affected trial fairness or gave rise to an appearance of unfairness, such that a miscarriage of justice occurred – UnanimousR v Emms 2012 SCC 74 Whether it was appropriate for the Crown to seek police criminal record checks of prospective jurors and also to provide comments on whether any prospective jurors were "disreputable persons"; Where same should have been disclosed to the accused; Whether there is a reasonable possibility that same affected trial fairness or gave rise to an appearance of unfairness, such that a miscarriage of justice occurred – Unanimous

2013

Statistics 5 Majority or Plurality3 Concurrence0 Other1 Dissent0 Concurrence/dissentTotal = 9 Written opinions = 9 Oral opinions = 0 Unanimous decisions = 2

Case name Issue Co-authored by Joined byR v JF 2013 SCC 12 Whether a person can be a party to the offence of conspiracy – UnanimousR v TELUS Communications Co 2013 SCC 16 Whether the general warrant power under s. 487.01 of the Criminal Code can authorize prospective production of future text messages from telecommunications service provider's database – Karakatsanis JEdiger v Johnston 2013 SCC 18 Tort of negligence Rothstein J UnanimousR v ADH 2013 SCC 28 Whether the mens rea for the offence of child abandonment under s. 218 of the Criminal Code is subjective or objective – Rothstein JCommunications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd 2013 SCC 34 Labour arbitration and collective agreement management rights clauses Rothstein J McLachlin CJR v Baldree 2013 SCC 35 Admissibility of hearsay evidence – –R v MacKenzie 2013 SCC 50 Unreasonable search and seizure and exclusion of evidence under ss. 8 and 24(2) of the Charter – Abella, Rothstein, Karakatsanis and Wagner JJMcLean v British Columbia (Securities Commission) 2013 SCC 67 Judicial review and standard of review of securities commission decision – LeBel, Fish, Rothstein, Cromwell and Wagner JJWood v Schaeffer 2013 SCC 71 Whether police officers have right to consult with counsel before making notes on an incident; Whether police officers are entitled to basic legal advice as to the nature of rights and obligations in connection with an incident – McLachlin CJ and Abella, Rothstein, Karakatsanis and Wagner JJ

2014

2014 statistics 9 Majority or Plurality2 Concurrence0 Other1 Dissent0 Concurrence/dissentTotal = 12 Written opinions = 9 Oral opinions = 3 Unanimous decisions = 5

Case name Issue Co-authored by Joined byR v WEB 2014 SCC 2 Ineffective assistance of counsel – Unanimous (oral)R v MacDonald 2014 SCC 3 Unreasonable search and seizure Wagner J Rothstein JR v James 2014 SCC 5 Offence of sexual assault; Evidence – Unanimous (oral)R v Flaviano 2014 SCC 14 Offence of sexual assault and defence of mistaken belief in consent – Unanimous (oral)R v Sekhon 2014 SCC 15 Admissibility of expert evidence – Abella, Rothstein, Karakatsanis and Wagner JJR v Babos 2014 SCC 16 Stay of proceedings and abuse of process – McLachlin CJ and LeBel, Cromwell, Karakatsanis and Wagner JJR v Hutchinson 2014 SCC 19 Offence of sexual assault and consent Abella J Karakatsanis JReference Re Supreme Court Act, ss 5 and 6 2014 SCC 21 Eligibility requirements to the Supreme Court of Canada – –R v Anderson 2014 SCC 41 Whether s. 7 of the Charter requires the Crown to consider aboriginal status in seeking mandatory minimum sentences – UnanimousR v Hart 2014 SCC 52 Admissibility of "Mr. Big" confessions – McLachlin CJ and LeBel, Abella and Wagner JJR v Mack 2014 SCC 58 Admissibility of "Mr. Big" confessions – UnanimousWakeling v United States of America 2014 SCC 72 Unreasonable search and seizure under s. 8 of the Charter and the disclosure of intercepted private communications without consent – LeBel and Rothstein JJ

2015

Statistics 6 Majority or Plurality3 Concurrence2 Other2 Dissent2 Concurrence/dissentTotal = 6 Written opinions = 3 Oral opinions = 3 Unanimous decisions = 3

Case name Issue Co-authored by Joined byCanada (AG) v Federation of Law Societies of Canada 2015 SCC 7 Whether Proceeds of Crime (Money Laundering) and Terrorist Financing Act, as it applies to the legal profession, infringes the right to be free from unreasonable search and seizure and the right not to be deprived of liberty otherwise in accordance with principles of fundamental justice under ss. 8 and 7 of the Charter, respectively McLachlin CJ –Loyola High School v Quebec (AG) 2015 SCC 12 Proper approach to judicial review of discretionary administrative decisions engaging Charter protections; Whether decision of Minister of Education, Recreation and Sports requiring a proposed alternative program being entirely secular in approach is reasonable given the statutory objectives of the program and s. 2(a) of the Charter, and whether the decision limits freedom of religion under s. 3 of the Quebec Charter of Human Rights and Freedoms McLachlin CJ Rothstein JR v Nur 2015 SCC 15 Constitutionality of mandatory minimum sentences on grounds of cruel and unusual punishment under s. 12 of the Charter – Rothstein and Wagner JJHenry v British Columbia (AG) 2015 SCC 24 Wrongful conviction of claimant; Civil action alleging breach of Charter rights resulting from Crown counsel's wrongful non-disclose of relevant information; Whether s. 24(1) authorizes courts to award damages against Crown for wrongful non-disclosure, and the level of fault claimant must establish to meet liability threshold for awarding s. 24(1) damages – Abella, Wagner and Gascon JJR v Kokopenace 2015 SCC 28 Appropriate legal test for representativeness on jury roll; Jury representativeness under ss. 11(d) and (f) and 15 of the Charter – Rothstein, Wagner and Gascon JJR v Tatton 2015 SCC 33 Whether arson is a general or specific intent offence; Accused relying on self-induced intoxication as a defence for committing arson – UnanimousR v Rodgerson 2015 SCC 38 Whether trial judge erred in instructions to jury on concealment and clean-up of body in a murder charge and same's bearing on issue of intent for murder, and if so, whether that error was fatal in conjunction with erroneous instructions on accused's flight from and lies to police; Impact of long and complex jury charges on criminal justice system – UnanimousR v Simpson 2015 SCC 40 Defence of colour of right – UnanimousWilson v British Columbia (Superintendent of Motor Vehicles) 2015 SCC 47 Whether a peace officer is entitled to rely on results of an approved screening device used to collect breath samples to impose a driving prohibition, or whether other confirmatory evidence is required; Whether Superintendent of Motor Vehicles's interpretation of a statutory provision imposing immediate driving prohibition under the provincial Motor Vehicles Act was reasonable – UnanimousKanthasamy v Canada (Citizenship and Immigration) 2015 SCC 61 Whether decision of Minister of Citizenship and Immigration to deny relief to claimant seeking humanitarian and compassionate exemption to apply for permanent residence from within Canada was a reasonable exercise of humanitarian and compassionate discretion under the Immigration and Refugee Protection Act – Wagner J

Canada (AG) v Federation of Law Societies of Canada, 2015 SCC 7 (Dissent - Concurrence) Loyola High School v Quebec (AG), 2015 SCC 12 (Dissent - Concurrence) R v Nur, 2015 SCC 15 (Dissent) Henry v British Columbia (AG), 2015 SCC 24 (Majority) R v Kokopenace, 2015 SCC 28 (Majority) R v Tatton, 2015 SCC 33 (Unanimous) R v Rodgerson, 2015 SCC 38 (Unanimous) R v Simpson, 2015 SCC 40 (Unanimous) Wilson v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47 (Unanimous) Kanthasamy v Canada (Citizen and Immigration), 2015 SCC 61 (Dissent)

2016 R v Seruhungo, 2016 SCC 2 (Dissent) R v Spicer, 2016 SCC 3 (Unanimous) Carter v Canada (AG), 2016 SCC 4 (Dissent - Concurrence) World Bank Group v Wallace, 2016 SCC 15 (Unanimous) R v Saeed, 2016 SCC 24 (Majority) R v Vassell, 2016 SCC 26 (Unanimous) R v Jordan, 2016 SCC 27 (Majority) R v Williamson, 2016 SCC 28 (Majority) R v Anthony-Cook, 2016 SCC 43 (Majority) Morasse v Nadeau-Dubois, 2016 SCC 44 (Concurrence) Windsor (City of) v Canadian Transit Co, 2016 SCC 54 (Dissent)

2017 Michael Moldaver 2017 statistics 7 Majority or Plurality1 Concurrence0 Other6 Dissent0 Concurrence/dissentTotal = 14 Written opinions = 12 Oral opinions = 2 Unanimous decisions = 5

Criminal law = 9