Chief Justice R. Roy McMurtry
Monday, January 10, 2000
Chief Justices, colleagues, Mr. Attorney, distinguished representatives of the Bar. I would like to express the warmest of welcomes to everyone here this afternoon.
The Opening of the Courts represents, I believe, a unique opportunity to bring together members of the judiciary, Bar and public. Your presence here this afternoon is an important reminder of the crucial role played by the administration of justice as a vital and irreplaceable pillar of a democratic society.
Je souhaite une bienvenue très chaleureuse à tous ceux qui sont venu assister à cet événement si important dans la vie de notre province.
I am very pleased to be joined on the dais again this year by Chief Justice Lesage of the Superior Court of Justice and I am delighted to welcome to the dais Chief Justice Lennox, who was sworn in as Chief Justice of the Ontario Court of Justice several months ago.
I am also pleased to see here today so many of our colleagues from the Court of Appeal and the Courts of Chief Justice Lesage and Chief Justice Lennox, as well as a number of masters, Small Claims Court judges and justices of the peace.
I would also like to recognize the presence of those representing the many important legal associations this afternoon.
We would also like to express a special welcome to the Honourable James Flaherty and Mr. Robert Armstrong, G.C. who are attending their first official Opening of the Courts respectively as the province’s new Attorney General and as the treasurer of the Law Society of Upper Canada.
Last year our colleague John Morden stepped down from his office as Associate Chief Justice of Ontario. He has taken a richly deserved leave of absence to teach at the University of Toronto’s Faculty of Law. I am pleased that Mr. Justice Morden has joined us today and we all look forward to when he takes up his court duties again this spring.
On May 4, 1999 Mr. Justice Coulter Osborne was appointed by the Prime Minister as the Associate Chief Justice of Ontario. His appointment was, of course, very warmly applauded by the legal world and particularly by those who believed that I needed all the help that I could get!
Chief Justice Osborne underwent serious, but successful, cardiac surgery this past fall and we are all absolutely delighted with his excellent recovery. His presence here today is a special new millennium gift to the administration of justice in Ontario.
I would now like to give a report on the work of the Court of Appeal for Ontario, together with some brief general observations with respect to the administration of justice in Ontario, which will be followed by reports from Chief Justice Lesage and Chief Justice Lennox in relation to their Courts.
The Court of Appeal now consists of nineteen full-time and two supernumerary judges. The Court has lost two of Canada’s most distinguished judges with the retirements of Mr. Justice John Brooke and Mr. Justice Horace Krever.
The judicial service of Mr. Justice John Brooke has been almost unequalled in the history of Canada. He was appointed to the High Court of Justice in 1963 and to the Court of Appeal in early 1969. His distinguished judicial contribution to the administration of justice in Ontario, therefore, extended for more than thirty-six years.
Mr. Justice Krever joined the High Court in 1975 and the Court of Appeal in 1986. He also has made an enormous contribution to the Court and jurisprudence of this province, as well as serving as the chair of important commissions of inquiry, most recently the inquiry into the blood system in Canada.
During the past year, the Court was very well served by the appointments of Justices James Macpherson and Robert Sharpe after distinguished careers at the Bar, in government and academia and, of course, as trial judges.
The Court of Appeal has been honoured by the appointment of our former colleague, Madam Justice Louise Arbour, to the Supreme Court of Canada and we wish her well.
The Court of Appeal continues to be by far the busiest appellate court in the country. In 1999 the Court heard and decided about 1400 appeals.
In January of 1996 there were 1,582 civil cases perfected and waiting to be heard and we are pleased to report that that figure has been reduced to 316 as of today.
As we begin the new millennium, I am pleased to report that the hearing of non-expedited civil appeals is now about four to five months from perfection. The time frame in relation to hearing expedited appeals, family law related appeals and appeals delaying the progress of ongoing trials has been reduced to a period of about three months.
In criminal appeals, the time between perfection and hearing has stabilized at three to four months. However, the phenomenon noted last year related to the increased introduction of fresh evidence continues to cause considerable delay in a growing number of cases.
I would like to take this opportunity to thank my colleagues on the Court for their tremendous individual efforts in the reduction of the backlog of appeals waiting to be heard.
The level of work required to achieve this dramatic reduction of our back log continues to place a heavy workload on our judges, staff lawyers, law clerks and administrative support staff. I am therefore pleased, Mr. Attorney, that your Ministry has made available funding to enable the Court to recruit additional administrative staff, law clerks and staff lawyers. These additional resources are essential if the Court is to continue to deliver a high quality of justice in a timely way.
Delay in the production of trial transcripts continues to be the major factor in delaying the timely hearing of appeals. However, I recognize that the Ministry has taken initiatives to ensure that this source of systemic delay is reduced to a reasonable level. I would also like to thank John Callaghan, David Stockwood and Ron Slaght for their work on the ad hoc committee in relation to transcript delays.
With the advent of the integrated justice program, I am confident that delays in the production of transcripts will be largely eliminated.
In order to more effectively communicate with the Bar and to make the Courts more accessible to the public at large, the Courts of Ontario have created a joint web-site containing useful information relevant to each Court. The site contains updates on rule changes and practice directions, as well as general information about each Court. Additionally, the Court of Appeal posts on the web site all of our reserved decisions.
As we enter the new millennium, I believe that all of us with responsibilities in the administration of justice recognize the importance of continuing to strive to maintain a high level of public confidence in our justice system.
In Canada, the twentieth century witnessed much dramatic change and progress in the recognition of and respect for individual rights. However, many challenges, of course, remain and our legal institutions must be ever vigilant to respect that from where we have come and to a continuing dedication to the serving of the public interest.
At the same time, we recognize that the past several years have also witnessed an unprecedented public examination of the role of the courts. In this context, the Canadian Judicial Council recently embarked on a study of initiatives that would increase public and media understanding of the role of judges and the operation of the court system. In undertaking such a project, the Council recognized that these efforts must begin with education and, in reality, will be a long-term project. To be successful it is also the view of Chief Justices Lesage and Lennox and myself that the project must involve government, a broad participation of the profession and judiciary and members of the public.
As an initial step, I have had preliminary discussions with the Attorney General and Deputy Attorney General with respect to the current state of law curriculum and legal education in the high schools of Ontario. It is important to note that underlying the law curriculum presently available to high schools in Ontario through the ministry of education is the following important statement of principle:
Citizens should know the historical and philosophical concepts and ideas underlying our legal system. Students who respect the law and appreciate the benefits of a dynamic legal system are better equipped to participate in a legally regulated world. The study of law enables students to think critically and communicate effectively as legally informed citizens.
I would also like to recognize the work of the Canadian Journalists Foundation and its efforts towards improved justice reporting which has recently recommended the creation of Canadian Journalism and Law Institute mandated to develop educational programs and materials.
I believe that the goal of the concept of continuing public legal education, and particularly the judicial role in such education was eloquently stated by Mr. Justice Kirby of the Australian High Court, as follows:
Let it be a goal of the coming millennium that we re-teach the lessons of our constitution and engender an informed appreciation of the judges and of their vital importance for the peaceful government of us all. Not blind or uncritical faith. Nor confidence extracted by the ever-present threat of legal enforcement. Not appreciation won by clever public relations and media hype. But a deserved evaluation of faithful and honest service in a difficult profession, the alternative to which is anarchy and the power of guns.
Last year at the Opening of our Courts I strongly endorsed the resolution of the Canadian Bar Association which called for a greater commitment by the legal profession to pro bono work. Unfortunately, this was interpreted by some as a failure to adequately recognize the provincial government’s responsibility to provide a properly funded legal aid system.
The reality, of course, is that there will never be adequate government resources to meet the needed legitimate legal assistance that cannot be privately funded.
However, on a more positive note, I would like to comment briefly on the pro bono initiatives that have occurred during the past year which demonstrate a strong and continuing commitment on the part of many members of the bar to the concept of pro bono work.
Last April a conference was held at the University of Toronto Law School entitled the Ontario Pro Bono Initiative Summit. The conference was organized by the Law Society of Upper Canada and the University of Toronto Law School. Mr. Justice Stephen Goudge is a member of the steering committee. The Pro Bono Initiative is now strongly supported by all of the law schools of Ontario. In fact, during the 1999 fall term, over 200 Ontario law students were involved in providing legal assistance to non-profit organizations and assisting individual lawyers working on pro bono cases.
As a result of the issues identified at the summit, the Ontario Pro Bono Initiative is currently seeking funding for a centre for the advancement of pro bono services which it is hoped will lead to more focused and effective delivery of pro bono services while providing support and recognition to lawyers who wish to make a contribution to the legal needs of the poor and disadvantaged.
Since last spring, the Ontario Pro Bono Initiative has also been facilitating a small working group of representatives from leading law firms. The working group is drafting a law firm pro bono program which would involve a significant commitment by large firms to increased pro bono activities. The Ontario Pro Bono Initiative is also continuing to explore ways in which to encourage and support pro bono activities by medium and small law firms.
I should also like to express the court’s appreciation to members of the Defence Bar who have acted as pro bono counsel for inmate appellants, often assisted by law students at Queen’s University. This program is co-ordinated by Mr. Justice Marc Rosenberg.
As well as those persons who have no access to financial resources for legal assistance, there are those who have been legally aided in civil disputes but who have simply run out of funds before their trials are heard. Mr. Justice Colin Campbell has been actively involved in pursuing with various legal organizations and firms the means to obtain representation for these unrepresented litigants. He advises that the Law Society, the Advocates Society and a number of law firms are now willing to work towards the implementation of a pilot project in Toronto to assist such persons who are unrepresented at the time of a pre- trial hearing.
Judging by these initiatives, it is evident that the finest traditions of public service in the legal profession are alive and well, as the growing support for the various pro bono initiations demonstrate.
The late Chief Justice Brian Dickson referred to pro bono initiatives in the following terms:
It can help connect the lawyers who are sought after by the most privileged in society with the claims to justice of those who enjoy those privileges least.
Stephen Wexler, whose writings inspired many of the leaders of the clinic movement in Canada, spoke eloquently of the needs of the disadvantaged when he said:
Poor people are not just like rich people without money. Poor people are always bumping into sharp legal things.
We do know that the wounds from these “sharp legal things” are disproportionately felt. Because of the systemic discrimination which is still widespread, the wounds are particularly inflicted on racial and other minorities, women, Aboriginal people and those with literacy, learning and other disabilities.
Access to legal advice and access to justice remains one of the essential bulwarks of our society, of our individual liberties. Our freedoms are at best fragile and they depend on the ability of every citizen to assert in a court or a tribunal his or her rights under law, and to receive sound legal advice as to rights and obligations. Our laws and freedoms will only be as strong as the protection that they afford to the most vulnerable members of our community. In affording this protection, legal assistance does make a deep and essential contribution to our social fabric and indeed to our very way of life.
January 10, 2000