Report of the Chief Justice of Ontario upon the Opening of the Courts of Ontario for 2001

Chief Justice R. Roy McMurtry

Welcome and Introduction

Chief Justices, colleagues, Mr. Attorney, Mr. Treasurer, distinguished representatives of the Bar, ladies and gentlemen. I would like to commence by expressing the warmest of welcomes to everyone here this afternoon.

The Opening of the Courts represents, I believe, a unique opportunity to bring together members of the judiciary, Bar and public. Your presence here this afternoon is an important reminder of the crucial role played by the administration of justice as a vital and irreplaceable pillar of a democratic society.

Je souhaite une bienvenue très chaleureuse à tous ceux qui sont venu assister à cet événement si important dans la vie de notre province.

I am very pleased, of course to be joined on the dais by Chief Justice Lesage of the Superior Court of Justice and Chief Justice Lennox of the Ontario Court of Justice.

I am also very pleased that we are joined today with so many of our colleagues from the Court of Appeal and the Courts of Chief Justice Lesage and Chief Justice Lennox, as well as a number of masters, Small Claims Court judges, justices of the peace and legal and administrative staff from all of our Courts and the Ministry of the Attorney General.

I would also like to recognize the presence this afternoon of those representing many important legal associations. (name?)

I will now report on the work of the Court of Appeal for Ontario, together as well as making some brief general observations with respect to important initiatives related to the administration of justice in Ontario. My remarks will be followed by reports from Chief Justice Lesage and Chief Justice Lennox in relation to their Courts.

Composition of the Court of Appeal

The Court of Appeal now consists of eighteen full-time and four supernumerary judges.

All of the members of our court were delighted to welcome Madam Justice Janet Simmons to our court at the end of the summer. Before her appointment to the Court, Janet Simmons served with distinction as a member of both the Ontario Court of Justice and the Superior Court of Justice. At the time of her appointment she was the Regional Senior Justice of the Central West region of the Superior Court of Justice.

We are all aware that Mr. Justice Dennis O’Connor agreed to serve as the head of the judicial inquiry into the circumstances related to the contamination of the Walkerton water supply. He is very much missed by the members of the Court but we are all very proud of the important contribution that he is making to the people of Ontario in this major public inquiry.

Workload of the Court of Appeal

The Court of Appeal continues to be by far the busiest appellate court in the Canada. Each member of our Court hears three times as many cases as the national average of cases heard by appellate court judges.

Five years ago there were 1,582 civil cases perfected and waiting to be heard. That figure has been reduced to approximately 312 as of today. The hearing of non-expedited civil appeals is now four to six months from perfection. The time frame relative to expedited appeals, family law related appeals and appeals delaying the progress of ongoing trials has been reduced to a period of about three months.

In criminal appeals the time between perfection and hearing has stabilized at three to four months. However, a substantial increase in the number of applications for leave to introduce fresh evidence continues to cause considerable delay in a growing number of appeals.

I would like to take this opportunity to thank Associate Chief Justice Coulter Osborne for his most important administrative assistance and all of our colleagues in the Court for their continuing dedication to the resolution of appeals in a just and timely fashion.

The level of work required to achieve the dramatic reduction of our back log and remain current has placed a heavy workload on our judges, staff lawyers, law clerks and administrative support staff. I am therefore pleased, Mr. Attorney, that your Ministry made the necessary additional funding available to enable the Court to recruit additional administrative staff, law clerks and staff lawyers. These additional resources are essential if the Court is to continue to deliver a high quality of justice in a timely manner. I am also pleased to have the opportunity to once again publicly thank the administrative secretarial and legal staff of the Court of Appeal for their continuing commitment and dedication to the work of our Court.

A significant number of criminal appeals every year relate to unrepresented inmates and I would like to mention three important initiatives undertaken during the past year related to these appellants.

These initiatives have been implemented under the leadership of Justices Marc Rosenberg and David Doherty with the enthusiastic and important participation of members of the Ministry of the Attorney General, the Criminal Defence Bar and legal aid.

The principal challenge with respect to the appeals of unrepresented inmates generally is of course to identify appeals where there are relevant legal issues which require the assistance of counsel. A number of members of the Criminal Law Bar working on a pro bono basis have volunteered their services in aid of these inmates and in so doing are making a vital contribution to the administration of justice in Ontario.

In the past few weeks a pilot program has been instituted to provide legal assistance to unrepresented individuals placed in custodial settings under the mental health provisions of the Criminal Code. The Attorney General has agreed to fund counsel to provide assistance to the Court and to the unrepresented inmate in the conduct of these appeals.

There has been another important pilot project initiated in relation to the expediting of the hearing of inmate appeals where sentences of less than one year have been imposed. This project is to avoid systematic delay problems usually related to the timely production of transcripts. These delays have often resulted in the sentences being served before the hearing of the appeal where bail pending appeal has not been obtained. Our goal is to have the appeal heard within 60 days of the filing of the notice of appeal. While these fast track appeals may sometimes be argued on something less than a full record the interests of these inmate appellants will be better served by a more expeditious resolution of their appeals. Again the co-operation between the Crown Law Office, and members of the Defence Bar and Legal Aid is critical to the success of this project.

During the past year the Court also announced that judges would be available to conduct voluntary mediation of family law appeals, in order to provide a less costly appeal process. It is still too early to assess the extent of the demand for mediation but it should be noted that the mediation of family law appeals has been a successful initiative in Quebec.

In an effort to better educate the public in relation to the work of our Court all our judgments with the exception of brief hand-written endorsements are published on our website on the day the judgment is released. Furthermore the Court’s Media Committee in liaison with members of the media has developed new practices in relation to the release of our judgments in order that the media will have greater lead time in order to prepare more comprehensive reporting on judgments of particular public importance.

Before leaving the work of the Court of Appeal I should like to make a brief statement with respect to the manner in which judges of our Court should be addressed. There has been some debate across Canada in relation to whether judges should be addressed as “Your Lordship” or “My Lady” or simply “Your Honour.” The members of our Court should be addressed in gender neutral terms simply as “Justice” not as “Your Lordship” or “Your Ladyship” so that the appropriate address would be “Justice Weiler” or “Justice Finlayson” for example. The Court will be publishing a practice direction to this effect.

Last year at the Opening of the Courts I mentioned both a new public legal education initiative and also the importance of the new pro bono initiatives which were evolving. I have had the pleasure of working with a significant number of lawyers and judges in relation to both of these initiatives and would like to report briefly on them.

During the past year Chief Justices Lesage and Lennox and I participated on a steering committee comprised of judges, lawyers and educators. The committee includes representatives of the Ministry of the Attorney General, the Ministry of Education, the Law Society, the Law Foundation, Legal Aid, CBA (Ontario), the Advocates' Society, the county and district law associates and CLEO.

While members of the legal profession and judiciary have been involved in public legal education initiatives over many years with the exception of the annual Law Day it has been largely on an ad hoc basis.

The goal is to co-ordinate and expand these activities, including meaningful student visits to court houses and the co-ordination with local education officials for classroom visits of lawyers and judges. The response from the Bar has been most encouraging and I am pleased to report that over two hundred judges have volunteered to participate province wide.

In November Madam Justice Fran Kiteley, who with Justice Ormston of the Ontario Court and John Kromkamp of our Court have made an enormous contribution to the work of the steering committee, spoke to a conference of over two hundred teachers from across the province who are involved in high school law classes. Justice Kiteley also provided samples of resource materials that could be made available to educators. The teachers not surprisingly were most enthusiastic and supportive of the goals of our steering committee in relation to public legal education.

Within a few weeks there will be local education committees in every county and judicial district in the province with rosters of volunteers from the Bar, crown attorney's offices, judiciary and administrative staff.

A more structured process has been put in place where teachers may request a class visit to a courthouse, where the students would be met by a lawyer or judge or visits of lawyers and judges to classrooms.

An Ontario Courts website has also been established were online resources will be available to teachers, students and members of the public.

Law Day this year will be expanded to a full week of activities commencing on Monday April 23.

While volunteers are essential to the enhancement of public legal education we recognize that the possibility of establishing a permanent institute for public education should be seriously contemplated.

I am pleased to have the opportunity of thanking the members of the committee, many of whom are here this afternoon, for having devoted many hours to these projects in the public interest.

Again, I repeat the important statement of principle developed by the Ministry Of Education in Ontario that "students who respect the law and appreciate the benefits of a dynamic legal system are better equipped to participate in a legally related world."

While the efforts of the Steering Committee on Public Legal Education have been largely focused to date on the schools, we anticipate that the education initiatives will over time be expanded to the broader community.

On the pro bono front, I am pleased to report that during the past year there was activity promoting the concept in a number of areas. At the same time I again stress the pro bono work has long been a tradition of the legal profession in Ontario and I recognize that pro bono work can never be a substitute for an adequately funded legal aid plan.

In his address to the Advocates' Society fall convention last November Chief Justice Osborne addressed the issue of economic barriers to access to civil justice stating that "the cost of justice in the traditional way, that is through the courts has made the court system an irrelevancy for many" and one of his conclusions was and again I quote "to be effective, pro bono services must be made part of our legal culture. Management in law firms, small, medium and large must buy into the notion that firms should provide some prescribed pro bono services".

It is also often worth repeating the statement of the late Chief Justice Brian Dickson with respect to the importance of prop bono initiatives:

"It can help connect the lawyers who are sought after by the most privileged in society with claim to justice to those who enjoy these privileges least."

Over the past few years a number of organizations have been developed to facilitate the delivery of pro bono legal services in Ontario. these organizations which include Pro Bono Students Canada, Volunteer Lawyers Services, Legal Aid Ontario Mentorship Services, the Dickson’s Circle, Connecting Communities With Counsel and the Ontario Pro Bono Initiative. These groups have been meeting and networking in an effort to complement each other’s’ services and programs.

I have been attending pro bono committee meetings with the treasurer of the Law Society Of Ontario and some of his officials, representatives of Legal Aid Ontario and of the Law Foundation Of Ontario as well as Dean Ron Daniels of the University Of Toronto Faculty Of Law. The goal of these meetings is to support the establishment of an organization which will play a major role in the co-ordinating the delivery of pro bono legal services in Ontario, enhancing the capacity of the current service delivery systems, identifying gaps and needs, conducting conferences and research and developing educational and training programs for those engaged in the delivery of pro bono legal services.

The result has been the creation of an organization known as Pro Bono Ontario which has an interim board for its development and the board is presently seeking the services of an individual to design an implementation plan.

While the work of Pro Bono Ontario obviously has long term implications in the shorter term the Advocates' Society has established a pro bono committee which intends to establish a pilot project with a view to providing legal assistance to litigants who have reached the pre-trial conference stage but are unrepresented. Justice Colin Campbell has agreed to continue as the judicial liaison with this committee in Toronto. I am advised that similar projects will be developed outside of Toronto in the months ahead.

Access to legal advice and access to justice remains one of the essential bulwarks of our society, of our individual liberties. Our freedoms are at best fragile and they depend on the ability of every citizen to assert in a court or a tribunal his or her rights under the law, and to receive sound legal advice as to rights and obligations. Our laws and freedoms will only be as strong as the protection that they afford to the most vulnerable members of our community. In affording this protection, legal assistance does make a deep and essential contribution to our social fabric and indeed to our very way of life.

I would like to conclude by wishing everyone a happy, healthy and prosperous New Year.

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