New SCC Justice Moreau ‘very intelligent, incredibly hard working, fair,’ lawyers say

Law360 Canada (November 7, 2023, 12:01 PM EST) -- Criminal and civil litigators in Alberta say Justice Mary Moreau, former leader of their busy superior trial court and newly appointed to a Western seat on the Supreme Court of Canada, established a “stellar” track record as a lawyer, judge and chief justice in her home province.

Nominated by Prime Minister Justin Trudeau Oct. 26 to succeed Justice Russell Brown of Calgary, who stepped down from the top court last June, the fluently bilingual ex-chief justice of the Alberta Court of King’s Bench was appointed to the Supreme Court of Canada Nov. 6, after successfully navigating a cordial and deferential question-and-answer session on Parliament Hill with MPs and senators.

Lawyers who want to persuade Justice Moreau at the top court, where she was sworn in Nov. 6 and on Nov. 7 sat on her first appeal, a major Aboriginal treaty rights case, should prepare thoroughly, just as the longtime jurist always did in her previous roles as a defence counsel and longtime trial judge, said Paul Moreau (no relation), president of Alberta’s Criminal Trial Lawyers’ Association.

“As with any judge, be prepared, know your brief,” he advised. “Secondly, don’t waste time. Get to the point. She is an efficient person to do all the things that she’s done in her life,” he remarked. “Get to the issue, make your point and move on.”

Personal injury litigator Joseph Miller of Edmonton’s Weir Bowen LLP said he has appeared in front of the judge several times, including in a long medical malpractice trial.

“Counsel arguing cases before her would be well advised to have a command of both the factual background of the case and the relevant underlying law because there is no doubt that she will be as familiar with those as counsel should be,” Miller remarked. “She had a stellar reputation as a trial judge and as our chief justice.”

For Miller, “she has all of the attributes one would want in a judge. She is very intelligent, incredibly hard-working, fair, always well-prepared, patient and always very polite with counsel. She was always a pleasure to appear in front of.”

The chair of the Alberta Civil Trial Lawyers Association, Owen Lewis of KMSC Law LLP in Grande Prairie, Alta., said he worked with the former chief justice as a new law graduate and student law clerk with Alberta’s Court of King’s Bench and Court of Appeal.

“From my personal experience, she treats all of those with whom she interacts with respect, courtesy and compassion,” he remarked. “From my limited experience in appearing before [the former chief justice], but also having witnessed counsel appear before her, she expects that the lawyers will be well-prepared and civil to the opposing party and their counsel. ... She treats counsel, witnesses and the parties with the same respect, courtesy and compassion afforded to those she works and otherwise interacts with.”

Lewis said some of the changes the chief justice initiated during the COVID pandemic to preserve people’s access to the courts as much as possible “remain and have helped to make the court system in Alberta more efficient and accessible.”

Dino Bottos of Edmonton’s Bottos Law Group LLP said he has appeared before Justice Moreau many times during his career as a defence lawyer. “Justice Moreau is the epitome of what a judge should be – fair, open-minded and whip-smart,” he remarked. “Few judges have her special mix of intellectual and analytical rigour, depth and breadth of legal knowledge, and a pragmatic and plain-spoken manner when addressing the issues that come before her on a daily basis. Experienced counsel appearing before her always knew they had to be well-prepared to appear before her, and could expect well-reasoned challenges to their argument from her, even if opposing counsel was not capable of doing the same.”

Moreau recalled that years ago, when he was still a Crown in the appeals branch of Alberta Justice, he found himself prosecuting opposite the future judge on several occasions. “Anyone going to court with Mary ... better bring their ‘A’ game,” he commented.

“She was not difficult to deal with but was extremely stubborn in the defence of her clients’ rights,” he remembered. “She was intractable in that way, so she wasn’t always the easiest person [for a prosecutor] to deal with. She wouldn’t make, sometimes, concessions that the Crown might want her to make, but she was a foremost advocate and a fearsome advocate.”

“When I say stubborn,” he elaborated, “I only mean that in the sense that once she has staked out her position, she will defend it vigorously. That’s not to say she’s not open to looking at different alternatives ... but having selected the ground she wants to stand on, she will absolutely stand on it.”

Justice Moreau’s greatest strength, he suggested, “is her ability to look at a problem from all angles and see things from both sides.”

“On a social basis, Mary is just delightful,” he remarked. “She's pleasant. She’s funny. She tells a good story, is unfailingly polite, gracious, courteous.”

As a trial judge, “she runs a very efficient courtroom,” he remarked. “She knows her laws of procedure and evidence very thoroughly, so you’re never concerned about having to spoon-feed her the basics ... and she treats everyone extremely even-handedly and fairly.”

Justice Moreau was also a fine administrator and court leader, he said. “Although we’re sad to be losing her services as chief justice, because she’s been doing an excellent job in that role, she will be a marvellous addition to the Supreme Court of Canada,” he predicted. “She has a long history as a fair-minded, calm, very smart, and very educated trial judge, and we have no doubt that she will be an outstanding appellate judge well.”

With criminal appeals making up 65 per cent of the cases the Supreme Court of Canada heard last year (and 73 per cent of the appeals it decided in 2022), the top court will be able to draw on Justice Moreau’s broad criminal law expertise and in-the-trenches experience, he added.

In Moreau’s opinion, the judge would “not be a long way off-centre” philosophically on a criminal law spectrum of thought. “If she’s not right on the centre, she’s maybe just slightly towards the more libertarian end, but not very far, and certainly not far enough over that any Crowns would have anything bad to say.”

He elaborated that “there are some judges who are sufficiently middle of the road that nobody objects to them, and that’s one thing. But a smaller number of those judges are also very, very smart, know how to run a courtroom, know the laws of evidence, know the procedure — and those are the judges everybody loves and there’s only a few of them. She was one.”

When it comes to the prosecution and defence of sexual assault offences – one of the most fraught and polarized areas of the criminal law litigated before the Supreme Court — Moreau speculated “to the extent we can hypothesize that she might influence the direction of the court, what I would say is the pendulum [of the law] has swung a long way in the direction of complainants’ rights, or ... in the direction of the Crown, and perhaps her influence might bring it back a little closer to an even balance where the rights of the accused to make fair full answer and defence are balanced against rights of complainants. ... I think currently they might be just a little out of balance.”

(In the questionnaire Justice Moreau filled out as part of her application for the Supreme Court, she said that Supreme Court jurisprudence on s. 276 of the Criminal Code, in cases such as R v. Barton, 2019 SCC 33, developed principles about the admission of evidence of a complainant’s prior sexual activity “influenced by the social norms of equality and fundamental justice guaranteed” by the Charter “that trial judges can use to render justice in individual cases. This analytical framework does not have the effect of depriving the accused of their right to a fair trial,” she wrote. “It takes into account all of the people involved in the process and societal norms, thereby limiting the cross-examination to evidence that is truly relevant and on which we rely with a purpose other than to support inferences based on myths or stereotypes.”)

Bottos called Justice Moreau “kind” and “approachable,” with a “wonderful sense of humour.”

“She is also known for her compassion for the underprivileged and for the marginalized, and for those seeking access to justice,” he added. “She has earned the respect from the Alberta bar by demonstrating leadership on many fronts, including her modernization of the court after the COVID-19 pandemic hit. Anyone requiring a court hearing on an urgent or emergent basis was granted automatic leave to access the court, either in person or virtually, during those difficult times.”

Having read a number of the judge’s decisions, Bottos said he anticipates “Justice Moreau will bring to the Supreme Court an approach and philosophy that will strive to protect the rights and freedoms of all Canadians, regardless of their status in life and she will be fair, thoughtful and pragmatic when arriving at decisions.”

“She will also make the right decisions, notwithstanding what might fairly be considered a current political climate that can sometimes imperil the rights of accused persons in the exercise of their rights to full answer and defence,” he predicted. “She will see it from all sides, and hand down profound and forward-thinking decisions which will ... benefit ... all Canadians and all aspects of the criminal justice system.”

University of Alberta criminal law professor Peter Sankoff called Justice Moreau’s appointment “wonderful.”

“I think she’ll bring a lot of things to the court that the court desperately needs,” he explained. “First and foremost, she brings a trial judge’s perspective and that is something that’s really lacking, in the sense that most of the judges on the [top] court had very limited trial judge experience” in criminal cases.

Justice Moreau handled “bread and butter” criminal law issues in trials, he said. “That is just absolutely essential. She has a great deal of experience crafting jury charges, issuing jury charges, providing reasons on contested trial matters,” he said. “I’ve been concerned for some time that the absence of ... criminal trial court experience is a real downside to the Supreme Court in ruling on decisions that focus more on long-term jurisprudential concerns, and in the absence of how things are actually happening in” trials. ... And of course, she provides a great deal of expertise in criminal law as well.”

Sankoff, of Sankoff Criminal Law in Edmonton, said when he goes to court, “I’m looking for a judge who's open-minded enough to the issues to want to hear what I have to say, and sensitive enough to the competing concerns that you won’t regard [the judge] as ideologically driven one way or the other. And I think she fits that mould perfectly.”

However, one Alberta jurist contacted by Law360 Canada, who spoke on condition of anonymity, took issue with Ottawa’s process leading up to Justice Moreau’s appointment, stating that the Liberal government’s insistence that all Supreme Court candidates be functionally bilingual effectively excludes from eligibility many appellate judges seen as having distinguished jurisprudential records. (No appellate judge from the West is known to have applied for the post.) “When you combine really strict bilingualism requirements with Western Canada, you’re taking 95 per cent of the potentially highly qualified people out of the equation right at the outset,” the lawyer remarked. “And I think that’s a very serious problem.”

Civil litigator William Hembroff of Bennett Jones LLP in Edmonton, who has appeared before Justice Moreau “many times” in case management, in chambers and at trial over the years, said “I have been on the successful and unsuccessful side of [her] decisions and directions but, after an appearance, I am consistently confident that my clients’ positions have been heard, understood, and fairly considered.”

Hembroff said the former chief justice did “a great deal to successfully address access to justice issues in our province.”

As a judge, she “is always prepared before meeting with counsel in all forums,” he remarked. “She listens, asks relevant questions and identifies the crux of a dispute in order to efficiently manage the matter or to make a decision. She is respectful, courteous, and professional when dealing with counsel and witnesses, and projects her genuine desire to assist the parties. She expects counsel to be equally prepared, courteous to the court, to witnesses, and to each other, and to always act professionally. I would also say that [she] is decisive. Her reasons and directions are clear and unambiguous.”

Going forward as a member of the Supreme Court of Canada, “I would like to see her reasoned, practical approach to decision-making continue, and be reflected, in unambiguous, easily understood decisions that guide legal practice and clarify the law,” he said.

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