Report of the Chief Justice of Ontario Upon the Opening of the Courts of Ontario for 2003

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 express the warmest of welcomes to everyone here this afternoon.

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

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 the vital and irreplaceable foundation of a democratic society.

I am very pleased, of course to be joined on the dais by Chief Justice Smith of the Superior Court of Justice and Chief Justice Lennox of the Ontario Court of Justice. Again, I would like to congratulate Chief Justice Smith and Associate Chief Justice Cunningham on their recent appointments.

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 Smith 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.

I would like firstly to report on the work of the Court of Appeal for Ontario, together followed by some brief general observations with respect to the administration of justice in Ontario. My remarks will be followed by reports from Chief Justice Smith and Chief Justice Lennox in relation to their courts.

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

All of the members of our court were delighted to welcome Justice Eileen Gillese and Justice Robert Armstrong to our court in March of last year. Before her appointment to the court, Justice Gillese was a member of the Superior Court of Justice and the former Law Dean at the University of Western Ontario. Justice Armstrong was one of Canada's most distinguished advocates and has served as the Treasurer of the Law Society of Upper Canada.

I would like to take this opportunity to again thank our former colleague Justice George Finlayson for his distinguished service on our court for eighteen years. He is much missed and we wish him every success in his work at the ADR chambers. We are looking forward to his personal memoir related to the distinguished advocate John Robinette, Q.C.

We are looking forward to the return of Justice Robert Sharpe after his six-month sabbatical taken to complete his important biography of Chief Justice Brian Dickson.

Workload of the Court of Appeal

The Court of Appeal continues to be by far the busiest appellate court in the Canada. In the past year, over 1,300 appeals were heard, an average of over 160 hearings per judge. The appeals are becoming lengthier and significantly more complex, and we are writing reasons for judgment in a greater percentage of cases. This does not include motions and the many other matters related to the court that involve our judges. The members of our court also are very active in educational seminars and other educational programs, judging moot courts and giving speeches.

Six years ago there were about 1,600 civil cases perfected and waiting to be heard. That figure has been reduced to approximately 250 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 am also pleased to report that, absent exceptional circumstances, reserved judgments are released within a period of six months after argument. Given the seriousness and complexity of the cases which come before the court, the timely completion of reserved judgments is a credit to the hard work and dedication of the judges of our court.

Mediation

In the area of mediation, the initiatives developed by Justices Weiler and Labrosse continue to result in successful pre-hearing mediations which produce both significant cost saving for the litigants in family law matters and a reduction of the emotional trauma which is so often regrettably a part of family law litigation.

The court is also concerned with the number of criminal appeals in which the appellant is unrepresented by counsel. Such cases carry with them additional administrative and judicial involvement to ensure fairness and a timely resolution. One initiative this past year has been the tracking and expediting of all inmate appeals in which the sentence was less than two years. Similarly, the court has worked to expand a duty counsel program so that unrepresented inmates will be provided with some legal assistance. We have received the full co-operation of Legal Aid Ontario and a number of criminal lawyers who, in the best tradition of the bar have volunteered their time to assist unrepresented inmates, the program has been a real success and will hopefully be expanded.

We have been concerned with delays in relation to solicitor appeals and a committee of the court headed by Justices Charron and MacPherson with representation from all of the participants in the appellate process including lawyers, administrators and court reporters, has made important recommendations which will be implemented in the new year.

I would like to take this opportunity also to publicly thank all of my colleagues on the court for their continuing dedication to the resolution of appeals in a just and timely fashion and as well to thank the administrative, secretarial and legal staff for their continuing commitment and dedication to the work of our court.

I would like to make special mention of our Deputy Registrar, Keith Gauntlett, who has served thirty-three years with the court of appeal and this year was given a special award of recognition for his administrative leadership by the Ministry of the Attorney General.

Delays in criminal trials

Since the advent of the charter, the phenomena of much longer criminal trials has grown with the result that there are excessive delays between arrest and the conclusion of the trial let alone disposition of any appeal.

This matter was discussed at the last meeting of the Canadian Judicial Council which, of course, includes all of the Chief Justices and Associate Chief Justices across Canada. A resolution was unanimously passed indicating that it was a matter of extreme concern as it affected the integrity of the justice system and the public confidence in the administration of justice. The resolution recommended that the federal Department of Justice consider asking the appropriate body to undertake a fundamental study of the causes of the increased delays in pre-trial and trial processes. The Chief Justice of Canada has recommended to the Minister of Justice that this be a matter for early consideration by his department and the provincial ministers. To date, there has been no response of which I am aware from the federal Department of Justice but it is a matter that will continue to be stressed by the Canadian Judicial Council.

Public legal education

Last year at the opening of the courts, I referred to the new public legal education initiative.

This past spring, the public legal education initiative took the next step in its development with the incorporation of the Ontario Justice Education Network, a non-profit corporation committed to fostering a better understanding by the public of the administration of justice. Through local education committees located in over 40 centres across Ontario and comprised of volunteers from amongst the judiciary, bar, court staff and educators, significant progress has been made.

One of the core initiatives of OJEN has been its courtrooms and classrooms program where students visiting courthouses are met by lawyers and judges. The program has been an enormous success with tens of thousands of students participating across the province.

This year a very successful Summer Institute was organized in Toronto to provide an intense two days of legal education for high school law teachers. We hope to expand the program to other regions of the province. Again, I am very appreciative of the large number of judges, lawyers and educators who have volunteered their time.

I would like to thank the Law Foundation of Ontario for providing the funding for our excellent Executive Director, Taivi Lobu who has so effectively coordinated the initiatives throughout the province. I would also like to express our appreciation to Captain Doug Taylor who has coordinated the visits of thousands of high school students to this very courthouse.

An Ontario Justice Education Network web site has also been established where online resources will be available to teachers, students and members of the public.

Access to justice

It is clear that we must remain vigilant to ensure our system of civil justice is accessible to the broad spectrum of society and not just the wealthy or those whose costs of litigation are insured. The cost of conducting litigation has increased significantly over recent years. In 1996, a review of the civil justice system headed by Justice Robert Blair and former Assistant Deputy Minister Sandra Lang made many important recommendations that addressed concerns about the increased complexity and the increased costs of litigation. Most of those important recommendations have now been implemented.

However, I am convinced that the need to ensure the accessibility of our civil justice system is an issue of such importance that we should continuously monitor our performance in this area. In this regard, we must recognize the growing phenomenon of the unrepresented litigant. Although this situation is most predominant at the trial level, we are also seeing a rise of unrepresented parties in the Court of Appeal.

Because of the concerns about access to justice, I have initiated discussions with others involved in the administration of justice with a view to establishing a project that would develop recommendations for approaches that will assist in ensuring greater accessibility to the civil justice system in the future.

Pro Bono

The extent to which unrepresented litigants will benefit of the newly incorporated Pro Bono Law Ontario will become more evident in due course as it priorities and resources are determined.

It must again be emphasized that the pro bono initiatives are not and cannot be a substitute for a properly funded legal aid plan.

In any event two PBLO staff members have travelled throughout much of Ontario to assess the needs and particularly the gaps that cannot be filled by the legal aid plan.

At the same time important initiatives have been created and I would like to briefly mention three of these.

The Advocates' Society has taken on the responsibility for the child advocacy project which assists young people who are facing serious discipline measures which would end or seriously disrupt their education.

The Volunteer Lawyers Service has linked more than forty-five community organizations with lawyers and much needed legal representation. V.L.S. now has a roster of more than 300 volunteer lawyers.

A newly formed South Asian Legal Clinic hosts legal clinics across the Greater Toronto Area with the voluntary participation of many lawyers from the South Asian community.

I am pleased to chair PBLO Advisory Board and I would like to thank the Law Foundation of Ontario for its significant financial support of Pro Bono Law Ontario.

I am also encouraged by the fact that a number of law firms have indicated a real interest in structuring a pro bono program as part of their main stream legal activity.

I would also like to take this opportunity of thanking Lynn Burns, the Executive Director of Pro Bono Law Ontario for her continuing commitment and dedication.

It is worth repeating the statement of the late Chief Justice Brian Dickson with respect to the importance of pro 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."

Access to legal advice and access to justice remains one of the essential bulwarks of our society and 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.

Youth at risk

Last year I spoke of youth at risk and the reality that the administration of justice is unable to deal with the causes of criminal and other anti-social behaviour. The courts provide daily witness to the tragedies represented by young people at risk given their negative environments, lack of education and lack of opportunity.

I had expressed the hope that the three orders of government would be able to better co-ordinate their efforts in this area but I am unaware of any serious progress.

In any event, it should be pretty obvious that our courts alone will never be able to provide a social justice order based on caring, compassion and social justice.

As we begin a new year, we should reflect on the fact that many of the causes of our social ills are simply related to poverty. As estimated 200,000 Canadians are homeless and 1.7 million families are in "core housing need". Every winter a few of these people freeze to death. Thousands more develop ailments that those with warm secure homes will never know; close to 800,000 Canadians use food banks every month, forty-one percent of them are children.

While the poor and friendless may often be out of political fashion they are never without human needs. We also know that the poor and vulnerable may live in a free country but that it is often difficult for them to feel free.

At last years opening of the courts I made reference to the obvious fact that threats related to international terrorism might well place additional and unprecedented pressures on the courts as issues related to the respect of individual rights in an age of heightened security concerns are debated and decided.

Canada is of course a highly pluralistic and diverse nation and our courts must therefore continue to re-examine and re-evaluate our laws through the lens of multicultural fairness. As the Supreme Court of Canada has emphasized, "Canada is not an insular, homogeneous society. It is enriched by the presence and contributions of citizens of many different races, nationalities and ethnic regions". Canada's highest court has also stated "that judges must be particularly sensitive to the need not only to be fair but also appear to be fair to all Canadians of every race, religion, nationality and ethnic origin.

I would like to conclude by thanking everyone associated with the administration of justice for their commitment to what Prime Minister Trudeau often referred to as a just society and to wish you all a very happy 2003.

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