Report of the Chief Justice of Ontario Upon the Opening of the Courts of Ontario for 2006

Chief Justice R. Roy McMurtry

Welcome and Introduction

Chief Justices, colleagues, Mr. Attorney, Mr. Acting 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, law enforcement, courts administrators and the public. Your presence here this afternoon is an important illustration 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 who preside over the largest trial courts in Canada.

I am also very pleased that we are joined today with so many of our colleagues from the Court of Appeal, the Superior Court of Justice and the Ontario Court of Justice, 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 together with our special guests as follows:

I would like firstly to report on the work of the Court of Appeal for Ontario, followed by 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 Smith and Chief Justice Lennox in relation to their courts.

The Court of Appeal now consists of twenty-one full-time and three supernumerary judges.

In April of 2005, we welcomed Justice Paul Rouleau to our court. Justice Rouleau had served with distinction as a judge of the superior court and we are delighted to have him as a colleague.

Workload of the Court of Appeal

The Court of Appeal continues to be by far the busiest appellate court in Canada. In the past year, over 1,100 appeals were heard. The appeals are becoming lengthier and significantly more complex. These appeals do not include motions and the many other matters related to the court that involve our judges. For example, the members of our court are very active in educational seminars, judging moot courts, giving speeches and serving as advisors in relation to the administration of justice in developing nations.

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 some exceptional cases, appeals have been heard within days of filing.

In criminal appeals the time between perfection and hearing has stabilized at four to five 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. Given the seriousness and complexity of the cases which come before the court, the timely release of judgments is a credit to the hard work and dedication of the judges of our court.

Truscott Reference

As is well known, the court is involved in the management of the Stephen Truscott reference made by the Attorney General of Canada. Counsel were advised at the outset that the court was prepared to expedite the hearing of the appeal as soon as counsel for Truscott and the crown were ready to proceed. An edited copy of the Kaufman report was recently released to the public by the Attorney General of Canada.

We have been advised by counsel for Truscott and the crown that the realities of their investigations and preparation make it likely that the appeal will not be heard for many months. Further submissions with respect to the Truscott appeal will be made to a panel of our court on January 20th next.

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.

Unrepresented Litigants

The court is still 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. Our court continues to track and expedite all inmate appeals in which the sentence was less than two years. Similarly, the court and particularly Justice Marc Rosenberg has worked to create 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.

I am pleased to mention as well that under the auspices of Pro Bono Law Ontario and the Advocates’ Society, a program has been developed to assist unrepresented litigants involved in civil appeals.

Outreach

Last October, the Court of Appeal engaged in its third outreach program, travelling to Sudbury, Ontario for a two-day series of round tables, meetings, receptions and dinners with members of the judiciary, legal profession, court administrators in northern Ontario. We are very pleased that our annual outreach continues to be enthusiastically welcomed by our judicial colleagues and members of the bar.

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.

Ontario Justice Education Network

I am pleased to continue as the chair of the Ontario Justice Education Network and I would like to thank the hundreds of judges, crown attorneys, lawyers, legal aid representatives and others who continue to volunteer their time with the courtrooms and classrooms project throughout the province, giving tens of thousands of students and others the opportunity for an increased understanding of the administration of justice. Such initiatives also include law day programs, mock trials, and judge and lawyer shadowing by students and adopt a school programs that match lawyers to schools to serve as resources for law classes.

Exceptional leadership continues to be provide by the chair of the board, Justice Fran Kiteley. We welcomed a new executive director, Sarah Mccoubrey, early last fall who comes to OJEN with a very impressive background in community service. I would like to publicly thank Taivi Lobu for her dedicated and effective service as our first executive director.

In keeping with OJEN’s efforts to ensure youth from the aboriginal, francophone and immigrant communities are served by its programs, the OJEN network has welcomed new network partners including the Ontario Federation of Indian Friendship Centres, L’Association des juristes d’expression Française de l’Ontario (AJEFO), and the Ontario Council of Agencies Serving Immigrants (OCASI).

As one of the initiatives related to the Toronto mayor’s task force on community safety, OJEN is continuing an important collaboration with Toronto community housing corporation’s youth projects. Courtrooms & classrooms programs are now occurring in public housing communities with local judges, lawyers and youth workers.

All across the province, in both large and small communities, local educators and justice sector volunteers are getting together to develop activities and opportunities to meet the needs of students in their communities. This includes a greater number of visits by lawyers and judges to classrooms as speakers and as coaches in school mock trials. Teachers comment that their students benefit greatly from direct exposure to the justice system, as well as the role modeling provided by professionals taking an interest in their progress and success.

Law day continues to be a focus for justice education activities across the province. This year’s theme, diversity, democracy, freedom, will be the focus of the week of activities taking place from April 3 – 7, 2006.

OJEN’s website, www.ojen.ca, continues to expand, offering teachers curriculum resources in English and French, while also linking volunteers from across the province to local activities. I would like to thank the Law Foundation of Ontario, the Ontario Trillium Foundation and the Law Society of Upper Canada for their continued support of this public legal education activity.

Pro Bono Law Ontario

As the chair of the advisory committee of Pro Bono Law Ontario I am pleased to note that PBLO continues to be a valuable resource for pro bono practice in Ontario and Canada. To that end its focus has been on integrating pro bono into the mainstream of the legal services delivery system and creating dynamic partnerships between the legal profession and community organizations.

Recently, PBLO has made significant progress towards improving access to justice by developing projects that provide pro bono legal services to unrepresented litigants the appeals assistance project provides services and representation to unrepresented litigants in the Court of Appeal and divisional court.

PBLO will be launching, in January 2006, a small claims duty counsel pilot project, in the courts at 47 Sheppard Avenue. Pro bono lawyers will provide advice, and speak to legal issues at hearings and settlement conferences on behalf of unrepresented litigants.

I would like to take this moment to congratulate in particular the law firms that have developed pro bono policies that count pro bono time as billable hours. These policies send a strong message that pro bono is integral to the fabric of the firm and that participation in pro bono projects is to be encouraged and supported.

I would also like to congratulate the Ministry of the Attorney General for Ontario and the federal Department of Justice for developing pro bono policies that provide opportunities for government lawyer pro bono participation.

Persons With Disabilities

At last year’s opening of the courts, I mentioned an important new initiative to make Ontario’s court system fully accessible to Ontarians with disabilities.

This year, I would like to report on the progress that has been made on that front. Our new courts accessibility committee has been hard at work over the past year. The committee is comprised of representatives from the bench, the bar and the Ministry of the Attorney General.

The committee hopes to have their report and recommendations before the end of 2006. They have already undertaken and analyzed a comprehensive survey of the court system. They have identified a range of barriers that impede full access to the court system by persons with a physical, mental or sensory disability. The committee is exploring a range of options for addressing the barriers that have been identified and to address the concern that no new barriers be created in the future. These options will be fully informed by consultation with persons with disabilities before the committee reports to me.

I also want to commend the Ministry of the Attorney General for starting a site accommodation pilot project that is scheduled to begin in early 2006.

Legal Aid

I would like to take a few moments to talk about legal aid as it is of course a most important foundation stone of a humane and just society.

The basic purpose of legal aid is to serve the public by enabling each of its members to have access to the kind of legal assistance that is essential for the understanding and assertion of our individual rights, obligation and freedoms under the law.

We live in a highly sophisticated society with a highly developed sense of the need for positive intervention to protect the basic rights and freedoms of the disadvantaged, and to ensure continuing access to the rights and freedoms which we proclaim as fundamental to a civil, humane and just society.

It is a sad reality that we have not only too much poverty in this province, but as well too little understanding of the desperate straits poverty creates for so many people. The hardening of attitudes about poverty in recent years is something that all of us with access to public opinion must struggle to counter.

Legal aid is perhaps the single most important mechanism we have to turn the dream of equal rights into a reality. Indeed, 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 aid does make a deep and essential contribution to our social fabric and indeed to our very way of life.

I know of the strong commitment of Attorney General Bryant to ensuring that Legal Aid Ontario is adequately funded and I wish him every success in his continuing dialogue with his cabinet colleagues.

The concept of legal aid is, of course, directly linked to the issue of access to justice generally. In this context, access to our civil justice system is being increasingly restricted to the more affluent in our society. This is reflected in what has been described as the phenomenon of “the disappearing civil trial”.

This issue has been a priority for the Advocates’ Society and I am therefore pleased to learn that the society is organizing a policy forum on March 9, 2006 titled streamlining the Ontario civil justice system.

The first focus of the forum will be to examine civil justice reforms across Canada, the U.S. and the U.K.

The second focus will be on identifying the barriers that prevent effective justice reform from occurring in Ontario and to elevate the level of debate within the profession about new initiatives that will reduce the cost of and delays in the litigation process.

This issue is of vital importance to the administration of justice in Ontario and I commend the advocates’ society for its leadership.

I have been pleased to have had the opportunity of co-chairing with the treasurer an advisory panel on professionalism. The main goals of the committee are to promote professionalism, civility and a spirit of community and collegiality in the legal profession.

There have now been some five semi-annual colloquia on the legal profession which has produced a collection of high quality papers about the legal profession in its broadest sense. The law schools have been encouraged to enhance the teaching of professional ethics and much progress has been made in this regard.

There are many people who have contributed to this initiative, too numerous to mention, however I would like to thank Justices Stephen Goudge and Paul Perell in particular for their effective leadership in relation to this important initiative.

Conclusion

There is one overwhelming reality that I have learned since my call to the bar in 1958, and it is that the challenges facing the administration of justice in Ontario have grown hugely in the subsequent years. The increasing challenges simply reflect an ever increasing complex society.

I believe that the citizens of Ontario are very well served by the hundreds of men and women who discharge their daily responsibilities as judges with commitment, impartiality and fairness, at the same time all judges recognize that we must continue to strive to earn that confidence. Issues particularly related to access to justice and justice in a timely fashion will continue to demand the collective attention of the bar, government and the judiciary.

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