1990-1999 Overview

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One Court: A New Structure, A New Focus

Introduction

The Provincial Courts Pre-1990: Nature, Volume and Scope of Courts’ Work Increases

What Changed? A Combination of Events Leading up to September 1, 1990

Building an Administrative Structure: The Creation of a Chief Judge’s Executive Committee

1992-1993 – Years of New Administrative and Financial Arrangements

1994-1998 – The Court’s Internal Organization Continues to be Refined

Conclusion: A Decade Concludes With a New Name – Ontario Court of Justice

In my view, one of the main problems this Court has had over the years has been its relationship with the Ministry of the Attorney General…. [M]y objective is to give the Court more authority and control over its own budget and affairs. I am satisfied that we will soon have more administrative independence that recognizes the principle of ‘judicial independence.’

Chief Judge Sidney B. Linden, 1991[1]

Introduction

A number of external events combined and contributed to the evolution of the Provincial Court in the early 1990s, including the enactment of the Charter of Rights and Freedoms in 1982, the election of a new NDP provincial government on September 6, 1990, and the Supreme Court of Canada decision in Askov, released on October 18, 1990. (Sources: Gene Allen, “32,000 charges stayed since Askov ruling,” The Globe and Mail, 1990; Richard Mackie, “New Democrats Win,” The Globe and Mail, September 7, 1990.)

A number of external events combined and contributed to the evolution of the Provincial Court in the early 1990s, including the enactment of the Charter of Rights and Freedoms in 1982, the election of a new NDP provincial government on September 6, 1990, and the Supreme Court of Canada decision in Askov, released on October 18, 1990. (Sources: Gene Allen, “32,000 charges stayed since Askov ruling,” The Globe and Mail, 1990; Richard Mackie, “New Democrats Win,” The Globe and Mail, September 7, 1990.)

On September 1, 1990, a sea change occurred in the history of Ontario’s Provincial Court. Amendments to the Courts of Justice Act were proclaimed on that day and the Ontario Court (Provincial Division) was created – one Court with one Chief Judge, Sidney B. Linden. Two equally critical dates followed hot on the heels of September 1. On September 6, 1990, a new provincial government was elected. The Liberals were out, the NDP were in power. Then, on October 18, 1990, the decision in a landmark case – R. v. Askov[2]was released by the Supreme Court of Canada. Together, these three key events served to shape the years 1990 to 1999.

The Provincial Courts Pre-1990: Nature, Volume and Scope of Courts’ Work Increases

The new Ontario Court (Provincial Division) had evolved, over many years, from a loose collection of magistrates, justices of the peace and family and juvenile court judges. In 1968, the Provincial Courts (Criminal Division) and (Family Division) were created. In 1980, the Provincial Court (Civil Division) – a Small Claims Court – joined the group. Each of these three Courts had its own Chief Judge.[3] When the Ontario Court (Provincial Division) was formed in 1990, the Civil Division was not included and its judges became part of the newly created Ontario Court (General Division).[4]

The two decades leading up to the creation of the Ontario Court (Provincial Division) were full of change, on societal, legal and practical levels. Reformers – particularly those within the government itself – championed a profound increase in the responsibilities of the Provincial Courts, lifting their reputations along the way.

The nature, volume and scope of work of the Courts increased significantly. Cases become more complex, and judges and justices of the peace became more capable of handling them. Examples of how and why the system changed in the 1970s and 1980s include the following.

  • In 1982, the Charter of Rights and Freedoms heralded a much more sophisticated approach to judging on all aspects of the law, including substantive, procedural and evidentiary issues.
  • Criminal Division judges began hearing an increasing volume of Criminal Code cases as the federal government continually increased that Court’s jurisdiction to hear criminal matters during the 1970s and 1980s.
  • A requirement that judges must be lawyers of 10-years standing to be eligible for appointment became law in 1985.
  • A revamped appointment process for judges was introduced in 1988, designed to remove “any unwarranted political bias or patronage.”[5]
  • The Courts augmented and improved continuing education programming for both judges and justices of the peace.
  • The judges’ associations successfully asserted judicial independence[6] – and had that independence acknowledged by the Supreme Court of Canada.[7]

These – and many other changes – served to professionalize and reinforce confidence in the Provincial Courts.[8]

Yet, despite all these changes, the judiciary had very little responsibility for the administration, management and operation of these Courts.

When Linden became Chief Judge, he recalled:

“Despite the best efforts of former Chief Judges, there was little or no involvement of our judges in such areas as: financial management; operational decisions; the implementation of judicial support programs; the use of statistics and management information for assessing caseloads or judicial resource needs; or the day-to-day administrative needs of the judges and justices of the peace.”[9]

Developing that administrative structure became Linden’s primary objective during the entirety of his tenure as Chief Judge from 1990 to 1999.

Why the Provincial Courts Did Not Control Their Own Administration

In 1990, the fact that the new Ontario Court (Provincial Division) lacked administrative autonomy over its own processes was not at all surprising.

Courts in Canada had little to do with their own administration. “Judges and courts for the most part have not had a long experience with management or administration, and almost no experience with budgets. Historically, courts have not been widely known for their organizational expertise, and governments are accordingly cautious about transferring control over budget and personnel.”[10] But it wasn’t just governments that were nervous. Many judges, including chief judges, were concerned about taking on responsibilities that had never been theirs and were, for many, beyond their experience. Moreover, they worried that the government would transfer responsibilities to them without adequate resources to carry them out. They were judges, not managers. Judges, protective of their judicial independence, were concerned that a chief judge, with added administrative powers, might be tempted to micro-manage them.[11]

The result?

Until the 1990s, “the Provincial Division was managed as if it was a small branch or division within the Ministry of the Attorney General. Government officials provided the Provincial Division with necessary support services including financial monitoring, and the scant statistical information that existed was, at best, only intermittently shared with the Chief Judge’s office. Most contact between the Chief Judge’s office and the Ministry was at a fairly low level – at the Ministry’s Judicial Support Services Branch.”[12]

What Changed? A Combination of Events Leading up to September 1, 1990

Ian Scott in the 1980s. (Source: Ian Scott with Neil McCormick, To Make a Difference, (Toronto: Stoddart Publishing Co. Limited, 2001.))

Ian Scott in the 1980s. (Source: Ian Scott with Neil McCormick, To Make a Difference, (Toronto: Stoddart Publishing Co. Limited, 2001.))

Three key ingredients laid the groundwork for the introduction of the new Ontario Court (Provincial Division), with its focus on administrative autonomy.

  1. Courts became busier, with more complex cases – and delays grew.
  2. In 1985, the Supreme Court decision v. Valente[13] gave recognition – for the first time – to the concept that “administrative independence” was one of the conditions of judicial independence.
  3. In the late 1980s, Attorney General Ian Scott laid the groundwork for two phases of court reform. His objective was a streamlining of the courts in Ontario which, if it had been fully implemented, would have seen all trial courts in Ontario – provincial and federal – integrated into a single trial court.

In the lead up to the introduction of the new Provincial Division, “scant attention [was] paid to the scheduling or management of cases (because they did not appear to require it) and the judge’s role was simply to adjudicate the disputes that appeared on the court docket. Trial dockets were relatively short, as were the trials themselves, and there was no particular pressure or need to create more effective ways to deal with cases.

However, as cases became more numerous and more complex, particularly in the late 1970s and early 1980s, delays grew and the courts began to take a real interest in the administration and control of their own processes. Judges increasingly became involved in a series of pre-trial steps designed to encourage early resolution, to reduce delays, and to identify early in the process those cases that would actually proceed to trial. In this manner were born the pre-trial conference, case conference, settlement conference, and others, as well as the practices of case management and case-flow management.”[14]

The judicial system was changing – the way it was administered and managed was not.

Judicial Independence and Court Reform

Then came the Valente decision in 1985 which determined that:

Judicial control over the matters [of] assignment of judges, sittings of the court, and court lists – as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions, has generally been considered the essential or minimum requirement for institutional or “collective” independence.”[15]

That recognition of and push for enhanced administrative autonomy was continued through Ian Scott’s proposals for court reform. Scott felt that major changes to the justice system and court structure were long overdue. The system could be made more effective, accessible and affordable.

His overall plan included two phases. Phase I of court reform – which commenced on September 1, 1990 – included a new regional structure for all of Ontario’s courts. Further, this phase reduced several Ontario courts into two trial divisions – the General Division (the “superior” courts) and the Provincial Division – nominally united under the title “Ontario Court of Justice” – leaving the Court of Appeal as a separate Court. Phase II – which never came to pass – was intended to see the integration of the two trial divisions into a single trial court, with the objective of eliminating the confusion within and duplication of court services. There was some support for Phase II, especially within the Provincial Division, but in the larger justice and legal community, there was little consensus or support for that final integration to occur.[16]

Among Attorney General Ian Scott’s stated goals were:

  • a regional structure to ensure that people from all areas of the province would have local access to the courts – key to this was the appointment of Regional Senior Judges to work closely with the Chiefs within each of the two trial divisions; and
  • an efficient and cooperative management system for all courts in Ontario.

September 1, 1990: The Stage is Set

Phase I of Ian Scott’s plan began. The amendments to the Courts of Justice Act were proclaimed and came into effect on September 1, 1990. The Family and Criminal Divisions of the Provincial Courts became the Ontario Court (Provincial Division). Linden was Scott’s choice for Chief Judge and, in the context of Scott’s plans, an obvious choice. Earlier in his career, Linden had served as Ontario’s first Information and Privacy Commissioner and first Police Complaints Commissioner. He’d created both of those commissions and, as a result, had acquired a great depth of administrative experience. He was ready to tackle restructuring the Provincial Division.

Chief Justice Sidney B. Linden (Courtesy: S. Linden.)

Chief Justice Sidney B. Linden (Courtesy: S. Linden.)

A few months earlier (in April 1990), Linden had been appointed to replace Fred Hayes as the Chief Judge of the Provincial Court (Criminal Division).[17] Linden spent the next few months, as he recalled, “floating around” the Courts and asking questions.[18] In fact, he was absorbing all he could about the workings of the Courts and becoming increasingly concerned that very few systems and policies were in place. “There was a system of some sort, only nobody could define it. There were people in entrenched positions but there were very few meetings of senior judges and there was no formal sort of organization or structure to manage the Courts. And, there was no budget. This meant the Chief Judge would have to contact somebody in the Ministry of the Attorney General to request money.”[19]

Linden was regarded with suspicion. He did not have any experience as a judge. He was seen as Ian Scott’s right-hand man in the delivery of Scott’s vision of court reform. All this caused great consternation amongst the judges and justices of the peace of the Provincial Division who saw Linden not only as an interloper but a bureaucratic interloper to boot. Some made it clear to Linden that he was not a welcome addition to the Court.[20]

“There’s nothing to be alarmed about”

Chief Judge Sidney Linden

Chief Judge Sidney Linden

While Linden may have been nervous about the responsibilities of his new position as Chief Judge, he did not convey that sentiment in public. In an August 1990 interview with the Law Times, Linden adopted as reassuring tone.

It’s not like Aug. 31 it’s one thing and on Sept. 1, the whole world is going to change. It’s not that dramatic at all… It’s mostly administrative, organizational and structural – those kinds of things. We’ve got a lot of decentralizing to do and a lot of the work that has formerly been done in the chief judge’s office has to now be done in the regional senior judges’ offices and we have to get the process of amalgamating the family and criminal courts. But it’s certainly not going to happen in one day.

court reform headline

(Sources: John Beaufoy, “New Chief Judge Advises Lawyers Not to Worry,” Law Times, August 27-September 2, 1990, p. 11.; John Beaufoy and Jane Becker, “Court Reform: The New System,” Law Times, August 27-September 2, 1990, p.10.; Photo courtesy: S. Linden.)

September 6, 1990: The Stage is Upset

Attorney General Howard Hampton in 1990. (Courtesy: S. Linden.)

Attorney General Howard Hampton in 1990. (Courtesy: S. Linden.)

Coincidentally, only five days after the proclamation of the Courts of Justice Act, there was a provincial election and a change in the government. According to Linden, the new NDP government did not share the previous Liberal government’s agenda for court reform.[21] On October 1, 1990, Howard Hampton was appointed Attorney General, fully aware of the problems looming on the horizon. “Rae [Premier Bob Rae] wanted to know my interest in becoming Attorney General…. I said, ‘AG is a hell of a mess and it’s about to get bigger. You know that the Askov case had gone to the Supreme Court of Canada, and my sense is this thing is going to blow sky high…. It will take the first four or five years of any government to deal with it. And there are huge problems in family law and legal aid.’[22] Rae got back to Hampton to tell him, “By default, you get the job of AG.”

Linden was now working with an Attorney General who had not appointed him and who didn’t fully support the changes of which Linden was meant to be an integral part.

October 18, 1990: “The Bottom Falls Out”[23]

On October 18, 1990, the Supreme Court of Canada released its decision in Askov. The Court decided that a delay of almost two years in bringing Mr. Askov’s criminal charge to trial violated the accused person’s right to be tried within a reasonable time under s. 11(b) of the Charter. The charges were stayed as a result.

The Provincial Division and the Ministry of the Attorney General had known for years that a serious backlog of criminal cases was building. Attorney General Ian Scott, with the assistance of Chief Judge Hayes and senior judges, had begun a series of delay reduction projects in the mid-1980s in heavily backlogged areas of the province. Despite this, the Provincial Division was unprepared for what was to come. Askov sparked a flood of Charter applications, resulting in thousands of criminal charges being stayed because a trial had not been held within a reasonable time. Court statistics showed that by April 1991 – six months after the decision in Askov – more than 34,000 criminal charges had been stayed or withdrawn.[24]

“Delay reduction” was set to become the banner cry – and the focus of the work of many of the criminal judges of the new Court for years to come as they conducted “blitz courts” and introduced new scheduling practices across the province to tackle the delays.

(Source: Rick Haliechuk, “Special courtrooms urged to cut backlog of cases,” Toronto Star, 1990.)

(Source: Rick Haliechuk, “Special courtrooms urged to cut backlog of cases,” Toronto Star, 1990.)

Linden’s Dilemma and Decision

“There was a month or so during September and October when it was like we were in a free fall. It was like we had fallen into a huge black hole and we had nothing to grab onto,” explained Linden.

Both Hampton and Linden recall that period as extremely difficult, as they both felt their way through their new roles and responsibilities. “I had a couple of dust-ups with Sid Linden,” recalled Hampton.[25] “After that, we developed a good working relationship, but it started off frosty.” Likewise, Linden remembered it as a time where both were figuring out where their respective responsibilities began and ended. “There were still lots of problems.”[26]

“There is no doubt that I thought seriously about moving on,” recalled Linden.[27] But he didn’t. Rather, he focused on the new Courts of Justice Act and, aided by a team of eight Regional Senior Judges and two “Special Advisors,” began building an administrative structure for the new Court.

The new collection of Regional Senior Judges and Senior Advisors, in November 1990.  Back row, left to right: G. Michel, G. Campbell, J. Evans, B. Lennox, D. August, G. Lapkin (Senior Advisor, Co-ordinator of Justices of the Peace). Front row, left to right: B. Walmsley (Senior Advisor, ACJ Family), M. Hogan, S. Linden (Chief Judge), H. Momotiuk. Missing: R. Walneck. (Courtesy: S. Linden.)

The new collection of Regional Senior Judges and Senior Advisors in November 1990. Back row, left to right: G. Michel, G. Campbell, J. Evans, B. Lennox, D. August, G. Lapkin (Senior Advisor, Co-ordinator of Justices of the Peace). Front row, left to right: B. Walmsley (Senior Advisor, ACJ Family), M. Hogan, S. Linden (Chief Judge), H. Momotiuk. Missing: R. Walneck. (Courtesy: S. Linden.)

Regional Senior Judges, 1990 – 1999

Don August                     Mary Hogan

Paul Belanger                 Bernard Kelly

Peter Bishop                   Brian Lennox

Grant Campbell              Gérald Michel

Donald Ebbs                   Harry Momotiuk

John Evans                    Raymond Taillon

L. Gauthier                     R.J. Walneck

Walter Gonet                  Anton Zuraw

Regional Senior Judges, 1995 – 1999

Brian Lennox

Marietta Roberts

David Wake

Building an Administrative Structure: The Creation of a Chief Judge’s Executive Committee

The regional structure contemplated by the new Act involved the creation of the position of “Regional Senior Judge.” The RSJ position was given the powers to perform the duties of the Chief Judge in his or her region.

The Chief Judge’s Executive Committee (CJEC) was formed in 1990 comprised of the province’s eight RSJs, and Linden had begun to meet with this group weekly beginning in August 1990. Two “Special Advisors” – family judge and former Associate Chief, Robert Walmsley, and Co-ordinator of Justices the Peace and Senior Judge, Gerald Lapkin – were added to the table for two specific reasons.[28]

  1. The original complement of RSJs only included one Family Court judge, Grant Campbell, and the family bench was concerned that family law issues would be overlooked in a predominantly criminal court.
  2. Lapkin had been appointed to his position by Ian Scott in 1988. Lapkin was in a similar position to Linden. The justices of the peace had been largely unmanaged prior to Lapkin’s appointment and with changes to legislation, they were brought into the purview of the Ontario Court (Provincial Division). Lapkin was working to implement an administrative structure for the justices of the peace. By bringing Lapkin to the CJEC table, Linden ensured that the RSJs would fully understand their responsibilities for justice of the peace issues.[29]

The work of CJEC focused on dealing with issues on a province-wide basis to ensure uniformity in the Court’s administrative approach – and to learn what was happening in each of the eight regions. CJEC was given the responsibility of setting the Court’s policy direction on a wide variety of administrative matters, including delay reduction and scheduling issues, court security, communications, use of computers, education, finance, northern issues and negotiations with the government.

In keeping with Ian Scott’s original plan for “judges as administrators,” the RSJs were not expected to carry a full caseload – their first priority was administration of the Court.

Regional Senior Judges

s. 36 (2) A regional senior judge of the Ontario Court of Justice shall, subject to the authority of the Chief Justice of the Ontario Court of Justice, exercise the powers and perform the duties of the Chief Justice of the Ontario Court of Justice in his or her region.

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 36 (2)

Twenty-seven New Judges!

Given all that had occurred in the autumn of 1990 – particularly concerning case backlog worries – many of the new RSJs told Linden they needed more judges. Not only were the RSJs’ sitting times now reduced but some felt that Ian Scott had purposely left vacancies unfilled. And, Askov had arrived on the scene.[30]

The RSJs tallied their “wish list” for new appointments at 16. When Linden met with Hampton, he didn’t have to time present his request for the 16 new appointments before he was told by Hampton that the Court would be receiving 27 new judges as a result of the Askov decision, plus eight new judges to replace the new RSJs, for a grand total of 35 judges – representing approximately 15% of the entire bench.

“The new government reacted to the Askov crisis by doing exactly what the previous government had said it would never do – appoint new judges,” recalled Linden.[31]

Attorney General Howard Hampton’s efforts to recruit judges to the Provincial Court attracted media attention, like this article in Canadian Lawyer, which included this illustration. (Source: Betsy Powell, “The Provincial Bench: Rough Justice,” Canadian Lawyer, Vol. 15, No. 2., March 1991)

Attorney General Howard Hampton’s efforts to recruit judges to the Provincial Court attracted media attention, like this article in Canadian Lawyer, which included this illustration. (Source: Betsy Powell, “The Provincial Bench: Rough Justice,” Canadian Lawyer, Vol. 15, No. 2., March 1991)

How did that happen? Ian Scott had set aside a significant sum of money to effect his planned court reforms of merger and amalgamation, specifically destined for adding staff and introducing new technologies. After Askov, and with money in hand, the government calculated that approximately 54,000 more criminal charges had been received than disposed of in the previous year. Further, they estimated that a judge, on average, could dispose of approximately 2,000 charges per year. That meant 27 new judges.

It also meant that the new RSJs and Chief were scrambling to decide where to put those new judges and how they would be used.

 

 

 

 

Seizing an Opportunity to Increase the Diversity of the Bench: Howard Hampton’s Recollections

Askov came in about two weeks after I was sworn in [as Attorney General]. The first round of [judicial] appointments came up towards the end of November. I made it known that we were going to appoint equal numbers of women and men. If we were appointing 10 judges, five would be women. I was very public about it. It caused a bit of a commotion. People said, ‘The best qualified lawyers should be appointed.’ I said, ‘Then in the first round, they may all be women,’ recalled Howard Hampton. By June 21, 1991, 27 judges had been appointed to the Court since the previous October – 16 were women.”

(Source: Interview of H. Hampton for OCJ History Project, 2014.)

November 1, 1990: The Chief Speaks to the Court – and Keeps Speaking

Judge Paul Reinhardt in 1990. (Courtesy: S. Linden.)

Judge Paul Reinhardt in 1990. (Courtesy: S. Linden.)

“There are developments over the past couple of months that I would like to report to you.” This under-stated sentence begins the first of many newsletters sent out by Chief Judge Linden, starting on November 1, 1990. Linden’s newsletters were joined by Benchmark in January 1992, a more informal publication for the judges, noting appointments, retirements and the like. Judge Paul Reinhardt served as the first editor of Benchmark over 12 years.

For Linden, open communication with the judges and justices of the peace was essential in this time of profound change and upset. “I know how important two-way communication is and I can assure you, that is our objective.”[32]

Reading Linden’s first newsletter, it is clear he didn’t shy away from the trouble spots on the Court. Given the suspicion with which he was regarded, it was perhaps disappointing but not surprising that the associations of the Family and Criminal Court judges took a dim view of his leadership at the outset.

In that newsletter, Linden wrote: “It is also important that the Office of the Chief Judge and the two Provincial Court Judges’ Associations have a cooperative working relationship. There are some issues, of course, on which there may be disagreement, but there are many areas of common interest, e.g., judicial education, improvement of working conditions, etc. on which we will be able to work together.”[33]

Throughout his tenure, Linden kept sending missives to the bench, alerting them to the many changes to the administrative structure of the Court and thanking them for their support.

The First Edition of Benchmark

Benchmark

(Source: Benchmark, Vol. 1, No. 1, January 1992.)

 

“I am encouraged by recent developments…”

Linden did not shy away from talking with the judiciary about the problems the Court faced in the early 1990s.It has taken years for some of the problems facing this Court to develop and no one expects us to come up with the solutions for them overnight, but I am encouraged by recent developments and I want to thank every one of you for your continued support.

S. Linden, “Chief Judge’s Newsletter,” Office of the Chief Judge, Ontario Court of Justice (Provincial Division), May 1991, p. 8.

 

Society Changes, the Court Changes

Issues that had previously been either invisible or ignored became increasingly obvious during the 1990s.  During the 1990, shifts happening in the larger Canadian society were mirrored in changes occurring in the Court.  A notable example was the increase of women in traditionally male-dominated professions and an emphasis on addressing workplace sexual harassment.

While a few women had served as Provincial Court judges in the years prior to the 1990s, a striking increase in their numbers on the bench occurred during the 1990s.  This began when Attorney General Howard Hampton announced that increasing the diversity of the bench was his key objective. “My goal is that at least 50 percent of the new appointments be women,” he wrote in a 1990 letter soliciting applications from lawyers across Ontario.

Further, the appointment process – through the creation of the Judicial Appointments Advisory Committee (JAAC) – had moved away from partisan political influence. As Hampton had written in that same letter: “a high standard of excellence” had become the main criterion for appointment to the bench. In turn, those appointed through the JAAC process became known as “merit” appointments.

It was a time of changing perceptions.

Transparency had become a hallmark of the appointments process and the bench became much more diverse, both in terms of women and other previously underrepresented groups. For some existing members of the bench, these changes were welcome and long overdue. For others, they were an implicit and uncomfortable criticism of the Court as it had existed before these changes.

As the work environment changed, the past tacit acceptance of what some called the “old boys’ club” began to disappear, with important consequences for the Court.  The Hryciuk case exemplified that change. Complaints were made to the Ontario Judicial Council involving Judge Walter Hryciuk’s alleged sexual assault and harassment of female Crown Attorneys and court staff.

After the complaint was made, Hryciuk never sat again. The Ontario Judicial Council conducted an inquiry into the complaint and recommended the holding of a public inquiry. A commission of inquiry was established by the provincial government and the Commissioner issued her report in 1993, recommending that Hryciuk be removed from the bench. However, in 1996, the Ontario Court of Appeal quashed the inquiry Commissioner`s findings and recommendations, ruling that the Commissioner had unfairly allowed new misconduct complaints to be added to the original complaint once the inquiry had started. The provincial government did not establish a second commission of inquiry, no further proceedings took place and Hryciuk, who had presided at Toronto’s Old City Hall, never returned to the bench. Walter Hryciuk retired in 1996.

This was an exceptional and unique case, but it affected the Court deeply.

First, on the personal front – for a variety of reasons – the Hryciuk proceedings divided the judges at Old City Hall. Many of them no longer felt comfortable in the judges’ lounge after a judge revealed conversations from the lounge during the inquiry.  Justice Ted Ormston recalled that time: “At Old City Hall, there was a huge judges’ lounge and there would be 20 of us in there – all that changed after the Hryciuk situation.”

Second, the Court took immediate action on the education front. Even before the inquiry decision was released in the Hryciuk case, the Court began providing judges with education on social context issues, including gender equity.

(Sources: Interview of T. Ormston for OCJ History Project, 2014; Justice Ted Ormston, Transcript of Interview for Oral History Project, Osgoode Society for Canadian Legal History, 2008; Interviews of A. Edgar and M. L. de Sousa for OCJ History Project, 2014.)

January 1, 1991: Regionalization of Administrative Duties

The formal shift from centralized to regional administration of a range of duties occurred on January 1, 1991. RSJs’ responsibilities included: day-to-day operational management of the regions, scheduling of judges and justices of the peace, arranging for swearing-in ceremonies, approval of expense accounts and reporting of attendance, vacation and sick leave.

This was one of the most important changes in the structure of the Court. Instead of bringing every issue to the Chief Judge, judges were encouraged to deal with their RSJs, with the hope that issues would be resolved at the regional level.

With this new structure came many committees, chaired by the various RSJs. The list included: Communications, Computers (Research & Library), Court Reform, Judicial Conduct, Education, Finance, Judicial Resources, Northern Issues, Scheduling/Delay Reduction.

The judges’ associations had representatives on every committee, which served as both a formal recognition by the Chief’s Office of their role in the structure of the Court and an olive branch to smooth troubled relationships.

May 1991: The Chief’s Office Moves House

Many of the changes that occurred in the first years of the 1990s were symbolic ones, with the effect of unifying the judges and justices of the peace, while clearly demonstrating the judicial independence of the new Court.

New gowns for judges were introduced in 1991, a basic black gown with a red sash “which is a remnant of the former Family Division’s judicial gown,” to be worn from the left shoulder to the right. All judges were asked to wear their gowns in court on criminal, family and young offender matters.[34]

The Court’s letterhead was changed to reflect its independence from government. For years, the Provincial Division judges had used the letterhead of the Ministry of the Attorney General. As Linden noted: “This may seem trivial, but when the Attorney General is the chief prosecutor in the Court, judges having to routinely use the Ministry’s letterhead does not contribute to the image of the judges being separate or independent from the government.”[35]

The offices of the Court were brought into one space – 1 Queen Street East in Toronto – in May 1991. This meant that staff supporting the criminal and family judges and justices of the peace were finally amalgamated in one location.

Case Management in the Family Court

The advent of “judicial case management” in the Provincial Court can be traced to the late 1980s and early 1990s, when many courts, both criminal and family, were struggling with backlogs and delays.  The rationale for judicial case management was a simple one:  a shared need to provide better service at reduced cost to the public, by reducing delays and increasing the efficiency of the justice system.

While there is no one definition for the term, it is generally accepted that case management exhibits four main features:

  • Early and continuous judicial control over a case
  • Time limits for each step in the process
  • Monitoring to ensure compliance
  • Firm dates for judicial proceedings
The case management system introduced at 311 Jarvis Street was profiled in a Globe and Mail article in 1995.

The case management system introduced at 311 Jarvis Street was profiled in a Globe and Mail article in 1995.

Traditionally, there was very little judicial control over a case at its early stages.  It was assumed that a court would hear little or nothing from the parties until they appeared on the date set for a trial, plea or preliminary inquiry.  It was up to the parties to resolve the case or prepare for trial without any judicial assistance or oversight. Judicial case management was premised on judges becoming much more actively involved with individual cases than ever before.  And the shift was not always easy for many existing judges who saw their job as only “judging” not “managing” cases.

In 1991, case management pilot projects were established in three locations of the Provincial Division:  311 Jarvis Street, Toronto; Windsor; and Sault Ste. Marie.

In May 1994, case management was fully and successfully implemented in the busy, multi-judge Toronto Family Court at 311 Jarvis Street.  Two of the judges who had worked on the pilot project to bring this project to fruition – Judge Mary Jane Hatton and Judge Joseph James – set to writing a guide book containing the principles and processes of case management for use in all Family Courts in the province.

Case Management in the Family Court: A Guide to Implementation, published  in 1995 by the Ontario Court (Provincial Division).

Case Management in the Family Court: A Guide to Implementation, published in 1995 by the Ontario Court (Provincial Division).

Published in 1995, Case Management in the Family Court: A Guide to Implementation proved to be a practical and useful tool.  It garnered the public’s attention.  Mary Jane Hatton’s experiences were detailed in The Globe and Mail:

On a recent day in court, Judge Mary Jane Hatton encouraged a couple in a support case to work on an amicable settlement, rather than immediately resorting to the court to settle things. She scheduled a 15-minute “case conference” – a kind of planning meeting – for two weeks later in case the couple couldn’t agree.  At that time she would identify issues with clients and lawyers and try to narrow down which ones would be argued.  Knowing cases will come back before a judge who is familiar with the file cuts down on game-playing or delay tactics. Judge Hatton says, in the past, lawyers might try several times for an adjournment until they got a judge they felt was sympathetic to their viewpoint.

(Sources: Mary Jane Hatton and Joseph James, Case Management in the Family Court: A Guide to Implementation, Office of the Chief Judge, Ontario Court (Provincial Division), May 1995; Patrick LeSage and Michael Code, Report of the Review of Large and Complex Criminal Case Procedures, “Judicial Case Management, Especially at the Pre-trial Stage,” November 2008;   Margot Gibb-Clark, “Where judgment is swift,” The Globe and Mail, February 28, 1995, p. B16.)

May 1991: The Formal Birth of the Centre for Judicial Research and Education

The law clerks from the former Criminal and Family Divisions, Allen Edgar and Roman Komar, respectively, together with Administrative Assistant Mirella Morello (of the former Family Division) were located in Toronto’s Old City Hall – and that office was reorganized into the “Judicial Research Centre.” The work of this group was led by a committee comprised of judges who were given responsibility for designing a research facility intended to be available to all judges of the Court. “New” technologies of the day – including faxing and computer links –made instantaneous, electronic communications possible.[36]

Allen Edgar Roman Komar

Allen Edgar (left) and Roman Komar in 1990. (Courtesy: S. Linden.)

 

R. v. Stinchcombe – The Charter brings more changes and challenges

On November 7, 1991, the Supreme Court of Canada held that an accused person has a right to full answer and defence under s. 7 of the Charter, and that, in order to implement that right, the Crown has a duty to disclose all relevant information in its possession to the accused.

This case changed the practice of criminal law – and, thus, the work of the judges hearing criminal cases – more than any other Charter decision. On the positive side, Stinchcombe enables the accused to prepare for the defence of cases and has invariably reduced the risks of wrongful conviction. Crown disclosure has added millions of dollars to the cost of prosecuting cases and contributed to a dramatic increase in the length of trials and in delays in getting cases tried.

Between Askov and Stinchcombe, the early 1990s saw cases become increasingly long, complicated and complex.

(Source: James Stribopoulos, Top 10 Charter Cases: As Revealed at the Symposium on the 25th Anniversary of the Charger, A Tribute to Chief Justice Roy McMurtry, Osgoode Hall Law School, April 12, 2007.)

 

Clearing up the Backlog: The “Special Project” in Brampton

Following the Askov decision, clearing the Provincial Division’s backlog became of pre-eminent importance.

This excerpt from the Chief Judge’s Newsletter of December 1991 provides a sense of that urgency.

A “special project” to deal specifically with the enormous backlog in Brampton Criminal Court was put in place at the end of September 1991 and, by all accounts, its impact has been significant. In the first two months a total of 1,542 accused people were dealt with in the two duty courts representing 3,203 charges. More than 4,000 witnesses have been released in the two months and assuming the police witnesses represent 70% of the total, there has been a savings of close to half a million dollars in police witness fees since the project began. The backlog which stood at 12,603 on September 30, 1991 is being reduced by approximately one thousand charges a month and is presently at 10,583. More importantly, all those connected with the project are satisfied that the high quality of justice in individual cases has been maintained.

S. Linden, “Chief Judge’s Newsletter,” Office of the Chief Judge, Ontario Court of Justice (Provincial Division), December 1991, p. 3.

1992-1993 – Years of New Administrative and Financial Arrangements

Following the whirlwind of change the Provincial Division experienced during 1990 and 1991, the Court began to negotiate and formalize many of the relationships it had cultivated in the first two years of the decade. However, this process took place during years of fiscal restraint – which coloured and shaped those relationships.

The following is a listing of some of those new administrative and financial arrangements undertaken in 1992 and 1993.

  • November 18, 1992 – Signing of the Framework Agreement

    This agreement, signed by the provincial government and the judges of the Provincial Division (as represented by the Ontario Judges Association and the Ontario Family Law Judges Association), created the Provincial Judges Remuneration Commission and introduced “binding arbitration” to the salary negotiations of the judges. In 1994, the Framework Agreement was incorporated to the Courts of Justice Act.[37]

As a result of negotiations amongst the judges’ associations and the provincial government, judges began to see their salaries rise in 1992. (Source: Tracey Tyler, “Provincial judges win 6.7% increase in salaries,” Toronto Star, December 17, 1992.)

As a result of negotiations amongst the judges’ associations and the provincial government, judges began to see their salaries rise in 1992. (Source: Tracey Tyler, “Provincial judges win 6.7% increase in salaries,” Toronto Star, December 17, 1992.)

  • July 20, 1992 – “The Honourable” – Letter from Federal Minister of Justice to Chief Justice of the Supreme Court of Canada

    In this letter, Kim Campbell advised of her intention to recommend to that provincially appointed judges across Canada could use the title “Honourable.” This change came after years of lobbying by judges across Canada, including Judge Charles Scullion of the Provincial Division.

The letter from Federal Minister of Justice Kim Campbell to the Chief Justice of the Supreme Court of Canada, Antonio Lamer, advising of the new honorific for provincial court judges.

The letter from Federal Minister of Justice Kim Campbell to the Chief Justice of the Supreme Court of Canada, Antonio Lamer, advising of the new honorific for provincial court judges.

  • December 1992 – Education Secretariat

    Recognizing that the Court needed to improve the delivery of education to its judges, the Education Subcommittee of CJEC, chaired by Judge Brian Lennox, had been created in 1991. The “Education Secretariat” together with a formal education policy – both announced in December 1992 – were the products of that subcommittee. The innovative aspect of the Education Secretariat was its membership – it brought members of the judges’ associations to the table. Further, the Education Secretariat was given control over the long-term “substantive and budgetary planning” for education policy and programming for the Court.[38] Judge Mary Hogan was the Secretariat’s first chair. 

  • June 21, 1993 – Signing of Memorandum of Understanding between the Ministry of the Attorney General and the Office of the Chief Judge

    A true first for any court in Canada, the Memorandum of Understanding signed by the Attorney General and the Chief Judge established clear and distinct responsibilities for the purposes of the administration of the Provincial Division. It served – and continues to serve – as the strong foundation of the Court’s administrative independence. The Chief’s Office, through the MOU, assumed control over budgets for the administration of the Office of the Chief Judge, the Regional Senior Judges, the Co-ordinator of the Justices of the Peace, and the judicial support budgets for the Provincial bench and all Justices of the Peace.

An excerpt from the Memorandum of Understanding between the Attorney General and the Chief Judge of the Ontario Court (Provincial Division).

An excerpt from the landmark Memorandum of Understanding between the Attorney General and the Chief Judge of the Ontario Court (Provincial Division).

  • July 1993 – Assignment of Two New Associate Chief Judges and Appointment of an Executive Co-ordinator

    Linden recalled he was still swimming in a deep and uncharted sea at this point. The position of RSJ had been statutorily recognized – and this group proved productive and useful to the administration of the Court.[39] Linden needed more help, however, particularly following the transfer of considerable administrative responsibility, authority and budgetary control to the Office of the Chief Judge through the new MOU with the Ministry of the Attorney General. Linden decided – on his own initiative and without statutory authority – to name two Associate Chief Justices to help build this new structure. His first appointments to those ACJ positions were Mary Hogan and Grant Campbell. The ACJ positions were not statutorily recognized until 1995 and, in early 1996, they were filled by Marietta Roberts and Brian Lennox. In addition, Linden appointed Tom Mitchinson as the Executive Co-ordinator in the Office of the Chief Judge. He likened this position to that of a CEO in a corporate structure, with the Executive Co-ordinator taking direction from the Chief.[40]

  • July 1993 – The “Social Contract” is Announced by the Provincial Government

    In the early 1990s, Ontario was in the worst economic recession since the Great Depression. The government requested $2 billion in wage cuts within the civil service through forced unpaid leave – and the judiciary was not exempt from this request. By agreement amongst the Chief Judge and the judges’ associations, the Court suggested a different approach to the government – one that would show a commitment to the concept of the Social Contract but would also respect the Court’s judicial independence. Instead of cutting the number of days judges would work by taking unpaid leave, the Court committed to presiding up to 3,000 more days per year. Linden made it clear to the judges: “We are in control of what we do and how we do it.” The procedure for tracking the commitment of 3,000 extra days was designed by the Court, not the government and, according to Linden, “allowed us to take the high road regarding the social contract and at the same time to keep our hard-earned salary gains.”[41]

  • December 8, 1993 – The “Investment Strategy” is Announced

    The Ministry of the Attorney General’s Investment Strategy was a direct response to the increasing caseloads and shrinking resources that the Provincial Division was facing. It was determined that “business as usual” could not continue and that the justice system needed an overhaul. Crown Attorneys and the police were given added responsibilities for screening charges and disclosure, with the aim, if possible, of reducing the number of charges coming into the system. For their part, judges had begun to schedule judicial pre-trials as well as to take firm control of their lists of cases and their courtrooms, ensuring that the Crowns, police and defence counsel were living up to their responsibilities.

The Importance of Information Sharing: Making the Investment Strategy a Success 

While always respecting judicial independence and the Court’s control over its administrative affairs, the concepts of collaboration and cooperation with all others in the justice system began to take on a new urgency for the Provincial Division in the early 1990s.Valerie Sharp, the Executive Legal Officer in the Office of the Chief Justice, was the Court’s representative on the committee established in 1993 to monitor and evaluate the success of the government’s Investment Strategy. The Court saw Sharp’s involvement as way for it to resolve issues that might arise with the implementation of the Strategy – but equally important – as a way of staying “plugged in” to what the Ministry was doing and, thus, allow the Court to evaluate the effectiveness of the Strategy vis-à-vis its work.

(Source: “Chief Judge’s Newsletter,” Office of the Chief Judge, Ontario Court of Justice (Provincial Division), December 1993, p. 4.)

 

The Critical Relationship between Computers, Court Statistics and the Court’s Work

“Each Regional Senior Judge is now equipped with a personal computer.” This was a very big announcement from the Chief’s Office in May 1991. And, the announcement continued that the goal was to have the Chief’s Office connected with all the Regional Senior Judges’ offices with an “electronic mail system.” It was stated that such “instantaneous communication will greatly facilitate (the Court’s) administrative tasks.”

In fact, the introduction of computers to all members of the Court did have a profound impact on the administration of the Court – particularly in terms of expanding the Court’s ability to collect and maintain its own statistics in order to establish its workload and administer it accordingly. Further, computers began providing individual judges instant access to online research services such as Quicklaw.

Interestingly, it took years for judges to be electronically connected. A 1996 article in Benchmark concerning the distribution of “Items of Interest,” a regular update from the Chief’s Office to all judges on emerging case law and legislative changes, was “broadcast faxed” to 75 Court locations and emailed to the 30 email addresses the Court possessed. Once the document was received at individual courthouses, it was then photocopied for distribution to individual judges.

Telewarrant Centre: The Court’s Telewarrant Centre is one early example of the move into the electronic age. Established in Newmarket in September 1997, the Centre received faxed applications to obtain search warrants. Justices of the peace reviewed those warrants and, thus, were able to provide service to police forces across the province, 24 hours a day, seven days a week.

Integrated Justice Project: In the late 1990s, the Ministry of the Attorney General and a consortium of private sector partners, headed by IBM, announced the creation of the Integrated Justice Project (IJP), a project designed to place the Ontario court system at the forefront of electronic technology worldwide.

IJP was touted as an electronic revolution that would result in a paperless justice system, by linking the correctional system, the courts, the judiciary, the prosecution service and the police into a “seamless network” through which civil and criminal cases could be filed and tracked.

An early indication of trouble was provided when IBM withdrew from the leadership of the project shortly after it began. IBM did, however, continue to participate in the consortium.

Despite the best of intentions and efforts as well as years of planning, IJP proved to be far too broad in scope. At its height, more than 200 people worked on the IJP and it was estimated that the capital investment by the consortium exceeded $200 million. The project ended in silence years later: the project partners sued for damages in litigation that was ultimately resolved by a confidential out-of-court settlement.

IJP was criticized as being “too ambitious,” by experts in courts administration – and based on the incorrect assumption that the various corners of the justice system were essentially ready to be linked together. That turned out to be impossible, given the inability to create simple links amongst the members of the system.

Civil Justice technology conference

A Civil Justice technology conference in 1996 showcased technology that would be used to modernize the justice system. Pictured at the conference (left to right) are Chief Justice of the Ontario Court (General Division) Patrick LeSage, Chief Judge Sidney B. Linden and Attorney General Charles Harnick.

While the Integrated Justice Project is generally viewed as an expensive, over-reaching failure, it did in fact greatly accelerate the introduction and use of computers and computer technology in the court system. In the long term, this has enabled the realization of a number of the benefits that formed part of the original project.

(Sources: Benchmark, Vol. 5, No. 4 – Fall (October 1996), p. 5; Kirk Makin, “Computer lawsuit costs Ontario $63-million,” The Globe and Mail, June 1, 2005, updated April 7, 2009; Article headline and photo courtesy Your MAG et vous, Vol. 8, No. 3, p.1, June 1996).

1994-1998 – The Court’s Internal Organization Continues to be Refined

By 1994, the foundation was firmly in place and the Court’s new governance tools – particularly the MOU with the Ministry of the Attorney General – were yielding tangible benefits. During the years 1994 to 1998, the Court continued to refine various elements of its administration – and began to reap solid recognition from those outside the Court, including the governments of the day, of the ever-increasing reputation and strength of the Provincial Division.

  • May 27, 1994 – Memorandum of Understanding with Associations of Judges

    Throughout the early 1990s, the relationship amongst the two judges’ associations – family and criminal – was in the process of being worked out and respective areas of responsibility were being determined. As Linden wrote in 1993, “no one could quarrel with the fact that the Associations have responsibility for collective bargaining on behalf of the judges…. By the same token, no one could quarrel with the fact that the Chief Judge is responsible for ‘directing and supervising the sittings of the Provincial Division and the assignment of its judicial duties.’[42] Some of the other areas of responsibility are not as clear.”[43] The MOU amongst the Ontario Judges Association, the Ontario Family Law Judges Association and the Chief Judge, signed on May 27, 1994, defined those responsibilities. 

  • May 1994 – Conversion of Justices of the Peace and Appointment of Regional Senior Justices of the Peace

    Although the “conversion” of justices of the peace had been in the works since the late 1980s, it received all the necessary approvals from the Chief’s Office in May 1994 and implementation began in earnest. This daunting project involved, first, determining how many justices of the peace there were in the province and then changing the justice of the peace system to move justices of the peace from fee-for-service remuneration to salaried full-time positions. The conversion project – which progressed from region to region – took four years to complete. As part of the conversion program, eight Regional Senior Justices of the Peace were formally recognized and given management responsibility for regional operations. 

  • November 1994 – Release of Judges’ Manual

    Although it sounds simple, a complete “manual” for judges had never been assembled and distributed to all judges of the Court. Texts concerning the role of magistrates and judges had been written over the years but nothing as fulsome as this manual.[44] This document, which contained such basic information as a list of the judges’ names and phone numbers, details of administrative policies, information about the legislation that impacted their pensions, salaries and benefits, and various documents detailing the relationship of the Court with the provincial government, served to unify the judges of the Court – and professionalize the workings of the Provincial Division. 

  • February 28, 1995 – Judicial Appointments Advisory Committee is Made Permanent

    The committee itself had a built-in affirmative-action edge; it was eager to have the courts represent the diversity of modern Canadian society. A short list of recommended candidates was made to the Attorney General, and appointees were selected from that list. This took old-style politics out of the process. The new appointments system was an important breakthrough. It helped to recruit many women judges, and it helped to make the bench more professional and competent.[45] 

(Source: Kirk Makin, “Judicial standoff creates controversy in Harris fold,” The Globe and Mail, December 16, 1999.)

(Source: Kirk Makin, “Judicial standoff creates controversy in Harris fold,” The Globe and Mail, December 16, 1999.)

  

  • 1995-1996 – Establishment of New Unified Family Courts

    The Hamilton Family Court was the first “Unified Family Court” in Canada – beginning as a pilot project in 1977. A Unified Family Court replaced, with one judge in one court, a collection of courts that heard a variety of different family law disputes. In 1995, Unified Family Courts were established in 16 other locations across Ontario. Many of the judges appointed by the federal government to the Unified Family Court came from the family law judges of the Provincial Division. In fact, the federal Minister of Justice had committed to appointing 75 per cent of Unified Family Court judges from amongst existing Provincial Division judges. The Provincial Division was fully supportive of this commitment, and indicated that such appointments provided the Unified Family Court “with a cadre of experienced judges to form the nucleus of the new Court.”[46] Not all judges were as supportive of these developments as the Court itself. 

  • December 1, 1995 – New Robes for the Justices of the Peace

    Justice of the Peace Frank Devine approached CJEC on April 6, 1995 with a proposal.[47] On behalf of all justices of the peace, he put forward the possibility of a distinctive robe for that bench. Traditionally, they had worn plain black robes. Their first choice was the addition of green piping on the collar and lapels of their current robes. Second choice was a green sash. CJEC approved their second choice and ACJ Roberts presented new sashes to all justices of the peace to be worn when presiding effective December 1, 1995. 

  • January 17, 1996 – A Landmark Letter is Sent to the Provincial Government

    Financial constraints continued throughout the 1990s. In December 1995, the Ministry of the Attorney General advised the Provincial Division, together with the Court of Appeal and the General Division, that all three Courts would be facing budget cuts of approximately one third over two years. On January 17, 1996, the three Chiefs sent a strongly worded letter to Attorney General Charles Harnick urging him “to seek a moratorium on any cuts to the administration of justice until a proper analysis of any proposed cuts can be made. Unless this is done, we fear that the result may well be truly chaotic.”[48] An interesting historical note – this letter was originally drafted by those in the Office of the Chief Justice of the Provincial Division and serves as a strong indication of the Court’s commitment to judicial independence and its growing reputation. The cuts to the Courts were not implemented as the province originally planned. And, the coming together of the three Chiefs resulted in the creation of a “Heads of Court Committee,” with the mandate of dealing in a “positive and principled way” with the challenges faced by the Courts and acting “in the best interests of the people of Ontario.”

(Source: Tracey Tyler, “Top judges put Harnick in tough spot,” Toronto Star, January 1996.)

(Source: Tracey Tyler, “Top judges put Harnick in tough spot,” Toronto Star, January 1996.) 

  • January 23, 1996 – Swearing-in Ceremony for Two New ACJs

    Following the legislative recognition of the two ACJ positions, Marietta Roberts and Brian Lennox were sworn in on January 23, 1996. Roberts’ position had the extra responsibilities of “Co-ordinator of Justices of the Peace.” At the swearing-in of the two new Associate Chief Justices – less than a week after receipt of that “landmark letter” – Attorney General Charles Harnick stated: “The Provincial Division in Ontario is one of the best, if not the best, managed court in the country.”[49]

  • June 11, 1998 – The Transfer of the Provincial Offences Act

    “One change that will have a significant impact on our Court is the transfer of the responsibility for the administration of the Provincial Offences Act from the provinces to the municipalities.” This change was made by amendments to the Act, proclaimed on June 11, 1998. The Court worked closely with the Ministry of the Attorney General to ensure that appropriate standards were maintained for the facilities to be used by the municipalities. This was considered essential to ensure that the proceedings of the Provincial Division – conducted by justices of the peace – would continue to be conducted in a manner and a setting which preserved the dignity of the Court – and ensured appropriate levels of service to the public.[50]

    Paul Bentley
    Ormston_TedJustice Paul Bentley (top) and Justice Ted
    Ormston. (Photo of Justice Bentley
    courtesy: Toronto Drug Treatment Court.)
  • May 11, 1998 and December 1, 1998 – First “Specialized Courts” in Ontario

    Specialized or “problem-solving” courts began in the 1990s in the United States to accommodate offenders with specific needs and problems that could not be adequately addressed in traditional courts. These specialized courts were developed to deal with an individual’s particular issues, including drug abuse, mental illness, and domestic violence – and tend to be non-adversarial in nature. The first two such courts opened at Toronto’s Old City Hall: Mental Health Court on May 11, 1998, and Drug Treatment Court on December 1, 1998 – both predicated on the assumed common goal of all parties to break the cycle of repeated incarceration by providing appropriate support systems to these individuals.[51]

 

 

 

 

 

Effects of the Creation of Unified Family Court on the Provincial Division

The expansion of the Unified Family Court (UFC) in 1995 – while officially welcomed by the Provincial Division – was a source of some ongoing tension and debate within the Court for two reasons.  The first related to the appointment process to the UFC and the concerns of those, from the Provincial Court, who were not appointed.  The second related to which Court – the UFC or Provincial Court – would deal with Youth Court matters.

As George Thomson, who was federal Deputy Minister of Justice at the time, explained:

The move to expand the Unified Family Court was not all good news for the Court. There were the judges of the Provincial Division who weren’t appointed to it. In some cases, they were judges who sat in the same Court as other Provincial Division judges who were appointed. As well, some communities, such as Belleville, were left out of the UFC expansion, even though they were surrounded by UFCs. Dealing with the disappointed judges was a major challenge for the Court. Further, there was a collective concern on the part of all of the family judges remaining in the Provincial Division that they would become marginalized and forgotten in a Court that was now even more overwhelmingly a Criminal Court.

There were also concerns amongst Provincial Division judges about the extent of the jurisdiction given to the UFC in 1995. The first UFC established in Hamilton in 1977 had been given jurisdiction over juvenile delinquency proceedings and this continued with the introduction of the Young Offenders Act of 1984 – at least for youth up to their 16th birthdays.  With the expansion of the UFC in 1995, the issue became whether these cases should be in the UFC or whether the Provincial Court should deal with all young offenders, from 12 to 18.

Youth Court work had frequently (but not exclusively) been done by family law judges in the Provincial Division prior to the establishment of the UFC. Some family judges, including many who were now part of the expanded UFC, thought they were better suited than their criminal law counterparts to deal with these young persons and argued that these cases and child protection cases should be in the same court.  Their concern was that the restorative approach to youth criminal cases would otherwise be lost. Others stressed the greater accountability aspects of the Young Offenders Act, the benefit of having one court deal with all young offenders and the developing expertise of the criminal law judges of the Provincial Court in this area.

A number of Provincial Court judges, including Regional Senior Judges Don Ebbs and Ray Walneck, were strongly in favour of the Provincial Court reclaiming the Youth Court jurisdiction. Compounding the issue was the federal government’s reluctance to appoint the number of judges to the UFC that would enable that Court to manage the caseload.  The decision was made to transfer the full Young Offenders Act work from the UFCs to the Provincial Court.

(Sources: Interviews with G. Thomson and B. Lennox for OCJ History Project, 2013-15)

Conclusion: A Decade Concludes With a New Name – Ontario Court of Justice

On April 19, 1999, Part IV of the Courts Improvement Act, 1996, came into force. Among other provisions, the statute changed the name of the Courts. The General Division became the Superior Court of Justice and the Provincial Division became the Ontario Court of Justice. At the same time, the title of the Provincial Division judges was changed to “Justice.” Over the decade, the Court that became the Ontario Court of Justice had navigated its course toward the modern era of judicial leadership and administrative independence.

  1. Sidney B. Linden, Chief Judge’s Newsletter, February, 1991, p. 6.
  2. [1990] 2 S.C.R. 1199.
  3. Ted Andrews served as Chief of the Family Division from 1968 onward. Fred Hayes took over as Chief Judge of the Criminal Division in 1972. Douglas Turner became Chief Judge of Small Claims Court in 1985, when that position was created.
  4. Today, Small Claims Court jurisdiction resides with Ontario’s Superior Court of Justice.
  5. The Judicial Appointments Advisory Committee, Interim Report, September 1990, p. 2 (“JAAC, Interim Report”).
  6. The judges’ associations: The Provincial Court Judges Association (Criminal Division) and the Ontario Family Court Judges Association. (Note: The criminal judges association later became known as Association of Provincial Criminal Court Judges of Ontario. In later years, the associations became known as the Ontario Judges Association and the Ontario Family Law Judges Association. In 1999, the associations merged and became the Ontario Conference of Judges. In 2015, the association was renamed and became the Association of Ontario Judges.)
  7. R. v. Valente, [1985] 2 S.C.R. 673.
  8. JAAC, Interim Report, p. 2.
  9. Sidney B. Linden, “Where we are, where we’re going,” Notes for Luncheon Address to:  Criminal Lawyers’ Association Spring Education Program, April 20, 1996 (“Linden, 1996 speech”).
  10. Brian W. Lennox, “Judicial Independence in Canada – The Evolution Continues,” in Dodek, Adam and Sossin, Lorne, eds. Judicial Independence in Context (Toronto: Irwin Law Inc., 2010), p. 636.
  11. Lennox, “Judicial Independence in Canada,” p. 636.
  12. Linden, 1996 speech.
  13. [1985] 2 S.C.R. 673.
  14. Lennox, “Judicial Independence in Canada,” p. 635.
  15. [1985 2 S.C.R. 673, para. 49.
  16. T.G. Zuber, Report of the Ontario Courts Inquiry (Toronto: Queen’s Printer, 1987) (“Zuber Report”); Linden, 1996 speech, p. 2; Association of Provincial Criminal Court Judges of Ontario, “Report of the Provincial Criminal Court Judges’ Special Committee, 1987,” (“Vanek Report”).
  17. At the time Linden was appointed Chief Judge of the Provincial Court (Criminal Division), Ted Andrews was serving as Chief Judge of the Provincial Court (Family Division).  Fred Hayes – Chief Judge of the Provincial Court (Criminal Division) was appointed to the Ontario Court (General Division).
  18. Interviews of S. Linden for OCJ History Project, 2013-15.
  19. Interviews of S. Linden for OCJ History Project, 2013-15.
  20. Interviews of T. Andrews, A. Edgar, and T. Ormston for OCJ History Project, 2013-2015.
  21. Linden, 1996 Speech, p. 3.
  22. Interview of H. Hampton for OCJ History Project, 2014.
  23. Interviews of S. Linden for OCJ History Project, 2013-15.
  24. Rick Haliechuk, “Justice system seeks fast track, Worst of backlog over, courts aim for trials within reasonable times,” The Toronto Star, p. A27.
  25. Interview of H. Hampton for OCJ History Project, 2014.
  26. Interviews of S. Linden for OCJ History Project, 2013-15.
  27. Interviews of S. Linden for OCJ History Project, 2013-15.
  28. S. Linden, “Chief Judge’s Newsletter,” November 1, 1990, p. 1.
  29. Interviews of G. Lapkin and S. Linden for OCJ History Project, 2013-15.
  30. Interview of G. Michel for OCJ History Project, 2013.
  31. Interviews of S. Linden for OCJ History Project, 2013-15.
  32. S. Linden, “Chief Judge’s Newsletter,” Office of the Chief Judge, Ontario Court of Justice (Provincial Division), November 1, 1990, p. 2.
  33. S. Linden, “Chief Judge’s Newsletter,” Office of the Chief Judge, Ontario Court of Justice (Provincial Division), November 1, 1990, p. 2.
  34. S. Linden, “Chief Judge’s Newsletter,” Office of the Chief Judge, Ontario Court of Justice (Provincial Division), February 1991, p. 4.
  35. Linden, 1996 Speech, p. 5.
  36. Interviews of A. Edgar and R. Komar for OCJ History Project, 2013-15; S. Linden, “Chief Judge’s Newsletter,” Office of the Chief Judge, Ontario Court of Justice (Provincial Division), May 1991, p. 6.
  37. Courts of Justice Act Statute Law Amendment Act, 1994, S.O. 1994, c. 12, s. 51.13.
  38. S. Linden, “Chief Judge’s Newsletter,” Office of the Chief Judge, Ontario Court of Justice (Provincial Division), December 1992, p. 4.
  39. Interviews with B. Lennox, S. Linden and M. Roberts for OCJ History Project, 2013-15.
  40. Interviews with S. Linden for OCJ History Project, 2013-15.
  41. S. Linden, “Chief Judge’s Newsletter,” Office of the Chief Judge, Ontario Court of Justice (Provincial Division), December 1993, p. 4.
  42. Courts of Justice Act, R.S.O. 1990, c. C.43, s. 5.
  43. S. Linden, “Chief Judge’s Newsletter,” Office of the Chief Judge, Ontario Court of Justice (Provincial Division), December 1993, p. 2.
  44. See for example: Ted Andrews, Family Law in the Family Courts, (Toronto: The Carswell Company Limited, 1973); S. Tupper Bigelow, A Manual for Ontario Magistrates, (Toronto: Frank Fogg, Queen’s Printer, 1962).
  45. Ian Scott, To Make a Difference, pp. 138-139
  46. Sidney B. Linden, Opening of the Courts Speech, January 6, 1999.
  47. Interviews with F. Devine for OCJ History Project, 2013-15.
  48. Letter to Charles Harnick, signed by Charles Dubin, Chief Justice of Ontario, Roy McMurtry, Chief Justice, Ontario Court of Justice, General Division, and Sidney B. Linden, Chief Judge, Ontario Court of Justice, Provincial Division.
  49. Benchmark, Vol. 5, No. 1 – Winter (January 1996).
  50. Sidney B. Linden, Opening of the Courts Speech, January 6, 1999.
  51. Judge Ted Ormston led the Mental Health Court initiative; Judge Paul Bentley was responsible for the Drug Treatment Court Initiative.