Report of the Chief Justice of Ontario Upon the Opening of the Courts of Ontario for 2007

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 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:

Today is the last opportunity for Chief Justice Lennox and myself to address the formal opening of the courts as Chief Justices. Fortunately, Chief Justice Lennox will be available to continue to serve the administration of justice in Ontario as a judge for many more years.

I would like to take this occasion to publicly thank Chief Justice Lennox for his distinguished leadership of his court over the past seven years. Despite the extremely heavy workload and other challenges, Chief Justice Lennox’s leadership has maintained very high levels of dedication, commitment and collegiality by the members of his court. For my part, I would simply like to state that it has been a great privilege and honour to have served as a judge for almost 16 years and as the Chief Justice of Ontario for eleven years as of next month. As I reflect on my spring retirement, I take great pride in the quality of the members of the judiciary who serve the people of Ontario on a daily basis. Their individual dedication to their responsibilities has strengthened our civil society of which all Ontarians should be very proud.

I would like 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 our province. 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.

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 the many motions and the 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.

Seven 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.

I would also like to take this occasion to congratulate associate Chief Justice Dennis O’Connor for his universally acclaimed report and recommendations in the Arar case. His vital public service in this context has brought great credit to himself, our court and to the institution of the judiciary in Canada.

Truscott Reference

As is well known, the court has been involved for many months in the management of the Stephen Truscott reference made by the Attorney General of Canada. Three weeks have been set for the hearing of the appeal which will commence later this month.

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 again mention as well that under the auspices of Pro Bono Law Ontario and the Advocates’ Society, that there is a continuing program to assist unrepresented litigants involved in civil appeals.

Outreach

The Court of Appeal continues to be engaged annually in its outreach program which includes a two day series of round tables, meetings, receptions and dinners with members of the judiciary, legal profession and court administrators in a different region each year. We are very pleased that our outreach program 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 support and their continuing dedication to the resolution of appeals in a just and timely fashion. As well, I would like to thank the administrative, secretarial and legal staff for their continuing commitment 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 again like to thank the hundreds of judges, lawyers, court administrators 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 summer institutes for high school law teachers, 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 OJEN board, Justice Fran Kiteley and OJEN’s Executive Director, Sarah McCoubrey.

OJEN has continued to develop justice education programs that focus on the needs of marginalized or under-serviced youth who may not otherwise have educational exposure to the justice system with an emphasis on community housing. As but one example, a program for students expelled from school has provided basic information about the justice system and an opportunity for students to gain academic credits. The program began with seven weekly sessions leading up to a mock trial argued at the College Park courthouse in Toronto. The second phase of this program, currently underway, includes a comparative approach to sentencing options, with students preparing sentencing submissions and participating in a sentencing circle. The students, though initially reluctant to discuss these issues with members of the justice sector, are now interacting positively with police officers, crown, defence lawyers and judges, countering negative perceptions of the justice system and building trust and understanding.

Law Day continues to be a focus for justice education activities across the province. This year’s theme, freedom, will be the focus of the week of activities taking place from April 12 – 16, 2007.

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.

In November 2006, PBLO hosted the first national Pro Bono Conference and Pro Bono Awards dinner. The events brought together stakeholders from across the country and across the legal profession to examine ways that pro bono can be used to enhance access to justice for low-income Canadians. They were also part of PBLO’s ongoing efforts to support and enhance the development of pro bono programs in other provinces (BC, AB, QC).

PBLO has a continuing commitment to developing resources in support of disadvantaged and marginalized communities, such as aboriginals, disabled children and the deaf.

In 2007, the organization is turning its energies to the aid of unrepresented litigants. Plans are well underway to develop an on-line self-help centre that will provide self-represented litigants with enhanced access to legal information and procedural information.

Additional plans are underway to develop court-based self-help centres to provide unrepresented litigants with vital pre-trial services including legal information, merit assessments and form completion assistance. PBLO is working with partners, the Advocates’ Society and the Ministry of the Attorney General to launch the project in 2007.

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.

At the same time, I know that the Attorney General agrees that pro bono initiatives can never be a substitute for a properly funded legal aid plan.

Persons With Disabilities

Two last years ago, I referred to an important new initiative to make Ontario’s court system fully accessible to Ontarians with disabilities. The committee is comprised of representatives from the bench, the bar and the Ministry of the Attorney General.

Our courts accessibility committee chaired by Justice Karen Weiler has been very busy over the past two years and recently submitted its report and recommendations to me which I have forwarded to the Attorney General. They have undertaken and analyzed a comprehensive survey of the court system. As a result 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 has presented a range of options for addressing the barriers that have been identified and to ensure that no new barriers are created in the future.

I am pleased to make public this committee’s excellent final report. It is the most comprehensive study topic in Canada. It provides an ambitious, practical and necessary roadmap to get our courts to the goal to which the legislature has committed us. Its roadmap will be equally useful to courts across Canada. I thank Justice Weiler and the committee’s for their efforts. I endorse the goal that the courts become fully accessible to persons with disabilities and I urge the Ontario government and the legal profession to join this commitment.

Furthermore, I am establishing a permanent Ontario Courts’ Disability Accessibility Committee, as the report recommends, to oversee progress towards a fully accessible court system. Its mandate will include implementation of this report’s recommendations. Justice Susan Lang has agreed to chair this committee.

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.

Access to Justice

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”.

The issues related to access to justice have been addressed by two very important initiatives during the past year. Firstly, the Attorney General requested the Honourable Coulter Osborne, former Associate Chief Justice of Ontario and the legislature’s integrity commissioner to make recommendations with respect to making the civil justice system more accessible and affordable in Ontario. His report is expected in the late spring.

Secondly, an important national Civil Justice Reform Conference was held in Toronto early last month, being phase ii of the review initiated by the Canadian Forum on Civil Justice. The forum made important progress in furthering the process of uniform sharing of information and assessing the reliability of civil justice information across Canada which is, of course, of extreme importance to meaningful reform.

It often requires repeating that a fundamental pillar of our democracy is the requirement that Canadians be provided with a means by which they can resolve their disputes peacefully and in a timely manner before an independent and impartial decision maker and that this process is accessible to all Canadians both in terms of cost and complexity.

I should like also to congratulate Justice Eleanor Cronk for her important continuing role in the Canadian Forum on Civil Justice.

Professionalism

I have been pleased to have had the opportunity of co-chairing with the Treasurer of the Law Society 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 seven 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, too numerous to mention, who have contributed to this initiative however I would like to thank Justices Stephen Goudge and Paul Perell in particular for their effective leadership.

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 repeat that 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 impartiality and fairness. At the same time all judges recognize that we must continue to strive to earn that confidence. Issues related to access to justice in a timely and affordable fashion will continue to demand the collective attention of the bar, government and the judiciary.

January 10, 2007

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