2000 Report of the Superior Court of Justice
Chief Justice Lesage’s Remarks
Opening of the Courts of Ontario
January 10, 2000
“We depend on the legal system to provide freedom. We depend on the law to define the outside limits of the respective areas of freedom or liberty in the total realm of actual or possible human activity.”
That quote from the late Dean W.R. Lederman, 40 years ago, applies today, as it did then. As we begin the 210th year of our Court, although we anticipate and will adapt to change, what will not change is the dedication of the judges and masters of this Court who will continue, as they have in the past, to give unstintingly of themselves to serve the citizens of this province. It is the goal of each of us to apply the rule of law in an independent, thoughtful, just and timely fashion to the multitude of issues brought to the Court for decision.
It is the responsibility of the judiciary of this Court to define the limits referred to by Professor Lederman, in a society that is changing rapidly and has become increasingly complex and compartmentalized. In our time there has been a dramatic change in the breadth of scientific knowledge and a plethora of technological innovations that raise and will raise new and profound issues for society and therefore for our courts.
I thank each judge and master of this Court for their commitment. their dedication is reflected not only in those visible hours in the courtroom and in considering and writing judgments or jury charges but also in the significant further hours required to keep current in changes in the law, and societal issues.
1999 was a year of steady progress in reducing the time to trial in our Court. Our available statistics indicate that we have just under 3000 criminal cases, about 8500 civil cases and less than 1000 family cases pending on our trial lists. Five years ago our pending trials were approximately 6000, 24,000 and 2000 for criminal, civil and family respectively. In the past year the number of civil and family cases ready to be heard has been decreased by 6% and our criminal list has been reduced by 2%. This represents approximately 650 fewer cases awaiting trial.
This has been achieved by the dedication not only of the judges but also of the trial scheduling staff in assuring efficient assignment of our case lists. I would be remiss if I did not also recognize that these improvements in our lists have been accomplished with the cooperation, interest and input of committed members of the Bar and bar organizations.
Last year our Court disposed of 4,500 criminal cases and 12,000 civil and family cases. While these statistics of course refer to the number of trials, we must also be mindful that the judiciary decides over 100,000 interlocutory motions, presides over pre-trials and conducts case conferences in those cases that are subject to case management. Significantly more than 25% of judicial time is spent on these important matters that serve to move cases towards trial readiness.
In the fall of 1999 we temporarily assigned judges from other regions to Toronto to respond to Toronto’s ongoing trial list caseload. Over 1,000 cases on the trial list were disposed of in a two-month period.
Our assessment of the cases awaiting trial reveals an increasing number are lengthy complex trials. We have recently completed one criminal jury trial that exceeded three years, one that lasted almost three years, and a third which has exceeded three years is now in its final stages.
At the 1997 Opening of Courts I commented that the maxim, ‘each litigant is entitled to their day in court’ did not mean their month in court or their year in court. We must, with the cooperation of the Bar, strive to ensure that our trials are more contained and are presented in the most succinct manner reasonable to achieve a fair hearing. Not every possible tangential issue need be explored to achieve a just result. Case management and trial management conferences have as their objective the identification of issues and the identification of relevant evidence so as to ensure that trial time is used appropriately.
Our statistics tell us that the number of cases on our trial list, or our inventory, could, province wide be disposed of in 9 months for civil cases, 6 months for family cases and 9 months for criminal cases. In simple terms, this means that, on average, civil and criminal trials can be heard within 9 months of the time a criminal trial comes to our Court, or a civil trial is ready to be heard. This of course, on the civil side does not reflect the time taken between commencement of an action and the litigants placing it on the trial list.
Two years ago, I commented that some suggest an acceptable goal would be that all criminal trials commence within 4 to 5 months of entering our Court, and that all civil trials, depending on complexity, be commenced within 6 to 9 months of being placed on a trial list or being ready for trial. We have made continued progress, but there is room for improvement in achieving an acceptable, timely disposition for civil and criminal trials.
I have spent some time talking about numbers and statistics. As judges we are always mindful that the outcome of an individual case must receive our full and undivided attention. The litigants, the accused and the community deserve no less. We must not and will not permit the goal of a manageable trial list to interfere with the just disposition of a case. We are always mindful of the need to give a careful and considered hearing to relevant issues raised before us, always keeping in mind the oft-quoted expression, justice delayed is justice denied.
In addition to our responsibilities in the general civil, criminal and family fields, we have 3 specific branches of the Court, the Divisional Court, the Family Court and the Small Claims Court.
The Divisional Court, sitting in panels of three judges throughout the province, hears applications for judicial review, appeals from civil judgments under $25,000, and appeals from a wide variety of tribunals dealing with human rights, securities regulation, welfare and social assistance, municipal law, landlord and tenant, commercial registration, and professional discipline of lawyers, health care professionals and others. This court is the main forum for adjudication of administrative law issues.
The Court is up to date with its current inventory of appeals and judicial reviews. Urgent motions can usually be accommodated within a day. Regular hearing dates can usually be provided within a few months after filings are complete.
Family Court (Unified Family Court)
The Family Court is the only court that has jurisdiction to deal with all family law issues. Accordingly, it is able to provide full service to the public. Along with support services including mediation, parenting education programs, supervised access centres, and information centres, families in crisis will be given better tools within one court system to assist in resolving their difficulties.
The Family Court has existed since 1977 when what was then known as the Unified Family Court was established in Hamilton. Four additional Family Court sites were established in 1995. On November 15, 1999, the Family Court was expanded to twelve new sites. At present it is in operation in all of Central East region, almost all of East region, and parts of Central South and Southwest regions. Almost forty percent of Ontarians now have this Court available to them.
The recent expansion of the Family Court reflects the considerable effort on the part of the Ministry of the Attorney General, the Superior Court, the Ontario Court and local bar associations. We have, however, experienced some growing pains. This is, perhaps, not surprising having regard to the fact that the Family Court expanded to an additional twelve sites in Ontario. I am concerned that the Ministry’s commitment to properly staff family law information centres and provide trained clerks under rule 39 of the Family Rules is not being maintained in some sites.
It would be important in tackling post-expansion issues, including implementation of the Family Rules, if the Family Law Initiatives group of the Ministry was maintained. The Attorney General has stated that he favours another round of expansion. I fully support this. As was the case before, the Superior Court will work closely with the Ontario Court, the Ministry and local bar associations to accomplish this objective. It may be that the group assembled for this renewed effort might also deal with the growing pains I have referred to.
Small Claims Court
The Small Claims Court continues to be the busiest branch of this Court. It provides just and efficient resolution of disputes. This Court could not, of course, operate without the dedicated Small Claims Court Judges and the practising lawyers, who provide a significant contribution to the administration of justice in this province by sitting as Deputy Judges. I express to each and every one of them the sincere gratitude of the judges of this court and the citizens of this province for their selfless contribution.
Case Management/Mandatory Mediation
Over the past year, the combination of case management with mandatory mediation in Ottawa and in Toronto have more than met the expectations of promoting the expeditious, fair and less costly resolution of civil cases. With the implementation of case management, our courts will have the ability to monitor the time that a civil case takes from commencement of the action until it is ready for trial and not as has been the case historically, become involved only when the matter is finally placed on the trial list.
The Attorney General has stated his intention of expanding case management across this province. A committee of our Court, chaired by Justice Coo, prepared a report that has recommended a common approach for case management expansion based on Rule 77 of the Rules of Civil Procedure. That report considers the nine years of case management experience in Sault Ste. Marie, Windsor and Toronto and the three year experience in Ottawa. The committee recommends technological supports, case management masters, and necessary resources to expand case management province wide. We will continue to work with the Ministry and with the Bar towards implementation of case management expansion. We look forward to the implementation of the essential technology and the commitment of resources to ensure a smooth transition to province-wide case management.
Communications with the Judiciary
Communications with the judiciary by the Bar and by self-represented litigants have become an issue of increasing concern in recent times. It has always been understood that it was not appropriate to communicate unilaterally with a judge about a case. Breaches of this basic principle have become more common. This is, no doubt, due to the increasing number of self-represented litigants but also, perhaps, because case management is perceived by some to have changed the traditional relationship between parties to an action and the judge. A draft protocol for communication by members of the Bar has been prepared by the Court to provide guidance for the benefit of all concerned. It has been forwarded to the Law Society of Upper Canada and other legal organizations for comment. The Court’s recent report on self-represented litigants also refers to this concern.
Criminal Justice Review
This committee, co-chaired by Justice Locke, Regional Senior Judge Evans and Assistant Deputy Attorney General Murray Segal had produced a fine report recommending practical solutions to improve the administration of criminal justice in the province. The report reflects three major themes: (1) the development of province-wide “best practices” based upon successful local procedures; (2) greater coordination among the various participants in the criminal justice system; and (3) enhanced use of technology. Central to the 115 recommendations in the report are those that propose the establishment of criminal justice coordinating committees.
The Superior Court and the Ontario Court have considered the report in detail. Meetings with the ministry of the Attorney General will take place soon so that the report can be implemented.
Last year I stated that a report of the Security Committee had been provided to the Chief Justices/Attorney General. The committee was co-chaired by Justice Trafford and Judge Bentley, and included representatives from the Ministry of the Attorney General, the Solicitor General and the Association of Chiefs of Police. Its mandate was to review the security services by police forces in court houses and to make recommendations to guide police in discharging their statutory responsibilities. A regulation has been passed providing that chiefs of police will prepare a security plan for all court houses and for an annual review of such plans. It is understood that guidelines will be issued to assist chiefs of police in this regard. The guidelines will recommend that chiefs of police consult with local court security committees consisting of judges, lawyers and ministry staff among others. Such committees will be of great benefit and I expect that all chiefs of police with responsibility for court security will consult with them. In this regard I want to specifically mention the security issues at the Family Court in Kingston. Consultation with the local security committee will be of great assistance to the chief of police in Kingston in addressing these issues.
During the past year the Court prepared a guide to assist judges in dealing with the self-represented litigant. The guide has been provided to the Ministry of the Attorney General, the Law Society of Upper Canada and other legal organizations. It is also available on Quicklaw. The Ministry of the Attorney General has recently provided information pamphlets to our Family branch sites to assist litigants. I wish to recognize those counsel who accept clients without remuneration or for reduced remuneration, to thank those counsel who regularly come forward to assist a self- represented litigant in court, and those who take on the role of amicus curiae in criminal cases.
In the recent past several long jury trials have concluded and another will shortly conclude. In one of those cases, the jurors served for over 18 months, in two cases for more than 15 months and 2 others for about 8 months. These cases are examples of the contribution made every day by jurors throughout Ontario. In the 18 month trial, jurors dealt with serious illness, family bereavement and, of course, as in all cases, employment, family and social disruption.
Every year thousands of citizens attend court without compensation to serve in panels from which jurors are selected. It is a sacrifice for each and every one of those persons. If selected to serve as jurors, they receive no compensation for the first two weeks of trial, $40.00 a day for the third to the tenth week. Only if the trial exceeds ten weeks do they then receive $100.00 a day.
It was observed by Justice Cory in the Supreme Court of Canada [r.v. Rmg  3 scr 362]:
“The jury system is clearly a significant factor in many democratic regimes. This is emphatically true in Canada. There is a centuries old tradition of juries reaching fair and courageous verdicts.
Justice Cory concluded that the jury is “truly a magnificent system for reaching difficult decisions”, but he warned that if the process is subjected to unwarranted pressures, or to unnecessary distractions, the delicate reasoning process may be thwarted”.
Justice Cory’s observations apply not only to the courtroom but also to pressures and distractions that arise outside the courtroom. This can occur when the privacy of jurors is violated.
In recent coverage of a high profile case the media failed to live up to its traditional standards. In that case the media intruded into the privacy of jurors resulting in considerable upset, I know, to some, if not all of them. Names, occupations and pictorial representation of the jurors were published in newspapers. Jurors have a right to be free from intrusive scrutiny not only during a case but after they have discharged their critical and onerous duties.
I proffer the gratitude of all Canadians to the jurors who have played such an important part in our criminal and civil justice systems. Their contribution is essential, is recognized and is appreciated.
Media Coverage in General
As much as I am concerned by the media coverage in this particular case, I am also concerned about the general content and tone of some newspaper reports of criminal cases. It is important that the public, through the media, be informed about cases before the Courts. Democracy in general and the administration of justice in particular benefit from such public scrutiny. It is also important that the right of the community to a fair trial not be jeopardized by inappropriate comments and opinions before the case is concluded. Fair public trials are fundamental to a democratic society.
The Attorney General, as chief law officer of the Crown, will I know share my concern and he will take appropriate action when required to preserve the right to a fair trial. To assist both the Court and the media, a committee of judges of this Court has prepared a media handbook. That handbook has been sent to various groups, including the journalism foundation, for review and comment.
In the past year, all judges and masters of our Court have been provided notebook computers with standardized software programs, and the training necessary to use the technology. We had a criminal jury trial conducted in a fully electronic courtroom during this past year. In that trial, thousands of exhibits on CD ROM were displayed to the jurors through strategically placed computer systems and monitors. It was our first fully functional electronic trial which facilitated the production, introduction and filing of thousands of exhibits which otherwise would have been dealt with in hard copy and distributed to the jury in a painfully slow process.
A web site developed with the two other courts is managed by the Judicial Librarian, Maria Cece. The web site can be found at www.ontariocourts.ca. The web site will grow into a valuable information source for the public and the legal profession on court-related activities.
It is becoming clear that information and information technologies and systems will continue to play a major role within the courts. Careful thought and planning must be exercised to ensure that these technologies, whether used in courtrooms or in judicial administration, operations or legal research, are appropriate and their implementation and use recognize and preserve the role of the judiciary and its constitutional independence.
The last year has seen new and refurbished court facilities opened in a number of sites across the province, including Hamilton and Welland. We anxiously look forward to the opening of one of the most needed court facilities in Ontario in the next few months in Brampton. Notwithstanding an almost new court house in Cornwall, additional courtrooms are seriously required to handle the large increase in criminal cases in that region. A long-term solution to Toronto’s court house requirements is of the highest importance and must be determined while appropriate sites are still available. I look forward to working with the Ministry of the Attorney General to resolve these court house facility problems.
We are a large, generalist, circuiting Court of 288 Judges and 17 Masters serving the more than 11 million people in this province from L’Orignal to Kenora and from Windsor to Cochrane and beyond. To administer a court so large and so geographically diverse would be impossible were it not for the assistance I receive from Associate Chief Justice Smith, the eight Regional Senior Justices and Senior Justice Steinberg of the Family branch.
In 1999, two of our Regional Senior Justices, Justice James Carnwath from Central West region and Justice Susan Lang from Toronto region, concluded their terms as Regional Senior Justices. Justice David Logan completed his term as of January 4 of this year and Justice James Chadwick will conclude his term in June, 2000. I thank those Judges most sincerely for their dedicated contributions and for the wise counsel they have provided to me, to my predecessors and for the leadership that they have provided to the Council of Regional Senior Justices.
We are fortunate to welcome two experienced Judges as Regional Senior Justices: Justice Robert Blair in Toronto and Justice Janet Simmons in Central West. We await the appointment of Justice Logan’s replacement and I am grateful to him for continuing to act in that position pending the appointment of his replacement.
Last year brought to an end the three year term of my Executive Legal Officer, Joe De Filippis. Within 8 days he will be sworn in as the newest Judge of the Ontario Court of Justice. He begins his judicial career with the respect and gratitude of the judges of this Court for the skill, wisdom and warmth he displayed in his former position.
During the past year 11 judges have retired and 2, Justice Frank Kovacs and Justice Larry Morin died in office. They were both wise and wonderful judges who are missed greatly by their colleagues and the lawyers who appeared before them. 36 new judges were appointed in 1999, 17 of whom were assigned to the expanded Family Court branch. We have 6 unfilled Judicial positions.
Comme vous le savez sans doute, toute la gamme de services offerts à la Cour supérieure de justice est disponsible dans les deux langues officielles.
Cause de la nomination de huit nouveaux juges bilingues, la Cour a maintenant la capacité de mieux servir nos justiciables francophones.
I cannot conclude these remarks without noting that our Traditional Masters have provided a most important and essential judicial service to the people of Ontario. Their numbers have diminished substantially as a result of recent retirements and the recent death of Master Peppiatt, who is so greatly missed, it has become increasingly burdensome for the remaining Traditional Masters to meet the caseloads that come before them.
We are pleased that the provincial government has increased the number of case management masters and recognizes the need for further appointments. Case management masters perform both traditional and case management masters duties. These appointments reflect the Attorney General’s commitment to case management in this province. Because of recent developments there is now a great disparity between the terms of appointment for the case management masters and those appointed to the Ontario Court of Justice, their traditional comparators. It is important that the provincial government consider that disparity in determining the viability of case management expansion and the important work the case management masters perform.
I conclude as I began with an excerpt of Dean Lederman’s article in the 1959 Canadian Bar Review, where he wrote, in part:
“…the legal system must in some measure undergo a continuous process of adjustment to changing conditions in our society. New conditions give rise to new conflicts of interest, ….old equilibrium points established by law between freedom and restriction may require to be reviewed and altered….in the end the best constitutional guarantees of justice we can hope for are those that safeguard the democratic character of our legislative bodies, the high quality and independence of the courts, and the fairness of procedure in both…. An independent judiciary of high quality would seem a necessity for the tasks of adjusting and also safeguarding the inner boundaries surrounding the essential core of our freedom.”