Remarks by: Chief Justice Warren K. Winkler
September 14, 2010
Welcome to the 2010 Opening of Courts ceremony.
We are honoured today by the presence of Chief Justice Heather Smith of the Superior Court of Justice and Chief Justice Annemarie Bonkalo of the Ontario Court of Justice. Also present are Associate Chief Justice Dennis O’Connor of the Court of Appeal; Associate Chief Justice Douglas Cunningham of the Superior Court of Justice; Associate Chief Justice Peter Griffiths of the Ontario Court of Justice; and Associate Chief Justice John Payne of the Ontario Court of Justice. We are also honoured by the presence of many of our esteemed judicial colleagues, masters, and justices of the peace.
As well, I am very pleased to welcome The Honourable David C. Onley, Lieutenant Governor of Ontario; The Honourable Pierre Blais, Chief Justice Federal Court of Appeal; The Honourable Allan Lutfy, Chief Justice Federal Court of Canada; The Honourable Michel Robert, Chief Justice of the Québec Court of Appeal; The Honourable François Rolland, Chief Justice of the Québec Superior Court; The Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada; The Honourable Chris Bentley, Attorney General of Ontario; Laurie Pawlitza, Treasurer of the Law Society of Upper Canada; and Commissioner Chris Lewis, Ontario Provincial Police.
I am also pleased to welcome the distinguished members of the Bar at the counsel table: Marie Henein, President, The Advocates’ Society; Paul LeVay, representing the Association des jurists d’expression Française de l’Ontario; Edward Wren, President, Association of Law Officers of the Crown; William Trudell, Chair, Canadian Council of Criminal Defence Lawyers; Robert Zochodne, Chair, Country and District Law Presidents’ Association; Paul Burstein, President, The Criminal Lawyers’ Association; R. Lee Akazaki, President, Ontario Bar Association; Thomas Hewitt, President, Ontario Crown Attorneys’ Association; Dale Orlando, President, Ontario Trial Lawyers’ Association; Chris Matthews, Treasurer, Toronto Lawyers’ Association; Jason Leung, President, Federation of Asian Canadian Lawyers; Mike Winward, President, Hamilton Law Association; Sharon Davis, President, Women’s Law Association of Ontario; and John Campion, President, Federation of Law Societies of Canada.
Honoured guests, ladies and gentlemen:
Je suis heureux que de nombreux collègues se joignent à moi dans notre système de justice.
In the past, I have spoken at this ceremony about the need to provide access to fair, affordable, timely, and high-quality legal services to the public. I have also spoken about the need to nurture openness and transparency in our court system. Although I could easily return to these foundational issues – as they remain as relevant today as ever before – instead, I have chosen to reflect on the role of the judiciary in administering the courts.
In 2006, the Canadian Judicial Council carried out a thorough review of how our courts ought to be run to enhance their effectiveness, efficiency and accountability while safeguarding impartial decision-making. The Canadian Judicial Council concluded that the public would be best served if the Canadian courts moved in a direction that provided for more judicial responsibility and input into the running of the court system. As Dean Lorne Sossin noted in an article on this very topic, “Judicial responsibility bridges the gap between the court’s authority over the assignment of cases, courtrooms and judges, and the resources needed to exercise this authority”.
The assumption by the judiciary of more administrative responsibility is not a new topic. In Ontario, we enjoy a collaborative approach to courts administration between the executive arm of government and the judiciary. This model of managing our court system has evolved over time and has served us well over the past decades. Much of our success can be attributed to the provincial civil service that manages the day-to-day operations of the courts with commitment, professionalism and creativity.
From the perspective of the Ontario judiciary, we have readily become more and more involved in material, government policy initiatives relating to the operation of the courts. I am pleased to announce that the Court of Appeal will soon sign its first Memorandum of Understanding with the Attorney General. The Memorandum of Understanding will set out our respective roles and responsibilities in relation to the operation of the Court of Appeal.
Our “made in Ontario” framework of co-operative court administration continues to recognize the need to preserve judicial independence, to enhance public trust in the justice system, and to promote the delivery of fair, modern and timely judicial services.
As with any public institution, however, there is always an appetite, a need and, indeed, an expectation that court services be modernized to meet new demands. The judiciary has willingly accepted the important leadership role it can, and does, play in court reform, and recognizes the shared interest we have with government and other key players in a well-functioning justice system.
So, where am I going with this history lesson? I am not here today to advocate for a wholesale takeover of the administration of justice by the judiciary. Rather, I am here to promote continuing on the course towards increased judicial participation in operational and policy planning for the court system.
For both the government and the judiciary, this means that matters of mutual interest regarding the administration of the courts must continue to be the subject of ongoing and meaningful dialogue. The courts and the Ministry share a common interest in:
Those are just a few key examples of how our collaborative court administration model can remain strong and successful. It is an approach that is based on trust, respect and constructive, ongoing communication.
Not surprisingly, I am most proud of our model of court administration when all three courts, the Bar and the government work together effectively and collaboratively to further the best interests of the public.
I turn now to the recent activities of the Court of Appeal.
With a complement of 22 full-time judges and two supernumerary judges, the volume of cases heard by the Court of Appeal over the last year has remained, statistically speaking, steady. While remaining the busiest appellate court in Canada, litigants continue to obtain timely hearing dates. The high-quality judgments of the Court also continue to be delivered within the targeted six month period, except in extraordinary circumstances.
I am pleased to announce that during the past year our Court has published its first-ever Annual Report which provides a detailed description of the Court’s activities and initiatives. The Report can be found on the Court’s web-site at www.ontariocourts.ca.
Over the past year, our Court welcomed a notable jurist to the Court of Appeal – the Honourable Justice Andromache Karakatsanis. In addition to bringing a wealth of legal experience and community involvement to this Court, she has also had an illustrious history of public service.
Justice Karakatsanis fills a vacancy created by Justice Susan Lang, who has elected supernumerary status with the Court. Justice Lang has had a distinguished judicial career since her appointment in 1989 as a member of the trial court, which included serving as the Regional Senior Judge for Toronto. Since 2004, she has served with great distinction as a member of the Court of Appeal. We look forward to many more years on the Court with our colleague Susan.
Importantly, the duty counsel and amicus curiae programs available to unrepresented litigants in inmate and mental health appeals have continued to improve the quality of legal assistance for those who would not otherwise have such support. They remain an invaluable source of assistance to the Court.
In addition, the Court has now begun to schedule all civil motions with unrepresented litigants on Wednesdays which allows volunteer lawyers, organized through Pro Bono Law Ontario, to act as amicus curiae on these motions. These volunteers assist the litigants to better understand the Court’s process and also make submissions on behalf of the litigant. The litigant is permitted to make submissions on their own behalf. This innovation greatly improves the functioning of the Court and enhances access to justice for the litigants.
Over the last year, more and more litigants sought to have their cases case- managed by a judge of the Court or to obtain the assistance of judicial mediation. The Court is accommodating these requests where appropriate in complex criminal, civil, commercial and family matters. We see this as an area in which the Court’s services to the public will be expanded in the future.
The Court of Appeal, in co-operation with the Superior and Ontario Courts of Justice, is continuing its efforts to expedite no-access Crown wardship appeals. Over the past year, our Court has improved its electronic tracking of these appeals and now assigns one judge with expertise in child protection matters to facilitate timely resolution of these matters.
In the area of family law, I question the effectiveness of the slow and steady approach of fine-tuning and rationalizing the present system. Rather than incremental change, perhaps it is time to consider a more dramatic and pragmatic revision of the manner in which family law services are delivered across Ontario.
Experience has shown that litigants need a family law justice system that provides early access to legal information and timely disclosure of financial data. The centre-piece of such an up-front family dispute resolution scheme ought to be an alternative dispute resolution process. Such an approach would have the advantage of being more informal, with fewer procedural steps, thus reducing costs to the litigants and increasing the opportunity for early and fair resolution. Accordingly, only in the event that the alternative dispute resolution process is unsuccessful would access to the costly, time-consuming, adversarial and sometimes acrimonious court process be made available to litigants.
I think the time has come for a fresh conceptual approach to resolution of family disputes in Ontario.
In the context of criminal appeals, the Court is undertaking a review of its Criminal Appeal rules to bring the rules in line with new technologies, incorporate new practices arising out of the Inmate Appeals Program, and address outstanding “housekeeping” issues.
In 2009, the Osgoode Hall Facilities Project was completed which allowed the Court to accommodate new program demands. An accessible ramp at the front of Osgoode Hall was also built during the past year under the provincial government’s Accessibility Project. Both projects have improved the Court’s ability to serve the public and carry out its core responsibilities.
As I indicated last year, there remains a pressing need within the province for improved and expanded infrastructure to respond to the substantial criminal caseloads facing both trial courts. It is indisputable that if we want cases to be dealt with in a timely manner, we must improve our courthouse facilities. In Toronto, where the need for additional courtrooms has become critical, I repeat my assertion of last year, that there is a pressing need for a new Toronto courthouse to supplement the 361 University Avenue courthouse. Unless our courthouses match the increased demands placed upon them, we risk intractable delays and potential miscarriages of justice.
We are all very much looking forward to an historic event in the life of our Court. The first ever joint meeting of the Court of Appeal for Ontario and the Québec Court of Appeal will be held in Ottawa in mid-October. My good friend Chief Justice Michel Robert, who is here with us today, and I are confident that the discussions will be beneficial to the members of both courts in meeting the challenges of the future. Les membres des deux tribunaux se réjouissent de cette prochaine réunion conjointe.
Over the past year, lawyers and judges across Canada, Uganda, the Netherlands, Kenya, Ethiopia, Scotland, Botswana, Australia, England, Nigeria, Tanzania and the Ukraine have had the benefit of learning from many of my distinguished colleagues.
Members of this Court have also continued to show great leadership in relation to the Civil and Family Rules Committees, the Law Clerk Committee, the Court’s Education Committee, the federal Judicial Advisory Committee, the Chief Justices’ Advisory Committee on Professionalism, the Chief Justices’ Information Technology Committee, the provincial Accessibility Committee, and the Canadian Judicial Council.
The Chief Justice of Ontario’s Advisory Committee on Professionalism, with membership spanning from across the Bench and the Bar, the Law Society and the Academy, is continuing its work on a number of initiatives to support the teaching of professionalism in our law schools and throughout the profession. In this connection, I would like to express my gratitude to the former Treasurer of the Law Society of Upper Canada, Derry Millar, for his commitment and dedication to this worthy cause.
As part of this effort, I am delighted to announce that the Committee has recently created an annual award for the best student paper on any subject relating to legal ethics and professionalism.
This award, sponsored by the law firm of Rueter Scargall Bennett, has been established to encourage law students to think and write about the legal profession. The winning papers will undoubtedly generate discussion and reflection throughout the legal community.
We should all be proud of the work that has been done over the last twelve months to strengthen our legal system. The Bench, the Bar and Court Administrators are committed, one and all, to providing accessible legal services, that are second to none, to the public of Ontario.
I thank you all for your contribution over the past year.