Opening of the Courts of Ontario for 2013

Remarks by: Chief Justice Warren K. Winkler
Toronto Court House
September 24, 2013

Honoured guests, ladies and gentlemen, thank you so much for joining us today for this special sitting of Ontario’s three courts.

Il me fait vraiment plaisir que vous êtes présents avec nous aujourd’hui pour cet important événement annuel.

Today is a very special day on two counts. Most significantly, it commemorates the opening of the courts in our wonderful province of Ontario, a hallmark of the free and democratic society that we strive endlessly to protect. For me personally, it is a defining day – in December of this year I will reach the age of mandatory retirement. Today is the last Opening of Courts over which I will preside as Chief Justice, although I look forward with fondness to attending many more such joyous ceremonies in the years ahead.

The Opening of Courts has always been profoundly meaningful to me. Since becoming Chief Justice more than six years ago, I have worked to increase the prominence of this occasion and to make it more celebratory. The Law Society has shared enthusiastically in this initiative, greatly assisting with the planning and increasing its publicity.  Today’s turnout is a testament to its efforts.

In keeping with the celebratory theme, it is fitting and appropriate that today we will be presenting the Catzman Award to two very deserving members of the Bar (Derry Millar and David Roebuck (posthumously)). This distinction, named in honour of The late Honourable Marvin Catzman, is awarded annually on this special day by the Advocates’ Society and the Catzman family to recognize outstanding civility and professionalism.

Consistent with the celebratory changes we have made, and greatly assisted by the multiple faith leaders and members of the legal community, the annual Divine Interfaith Service – held earlier today – has been re-shaped as a joyous musical celebration.  We thank Justice Julie Thorburn for her inspired leadership and creative musical direction.

The custom of holding a ceremony to mark the opening of the courts dates back to the Middle Ages. The ceremony was held in the autumn of the year to commemorate the beginning of the assize. In keeping with tradition, we observe this day in September at the start of the traditional common law “legal year.”   This symbolic occasion allows us to pause to recognize those who serve the public by upholding our fair and just legal system and the rule of law.  The rule of law ensures that our free and democratic society is and will continue to be peaceful, civil and respectful of all.  The bench and bar serve as guarantors of this principle. They are vital in safeguarding that the legal system is at once fair and balanced.  Our impartial and independent judiciary together with the independent and self-regulated bar are institutions that we must jealously protect.

Equally essential are the many others who work endlessly in public service in support of the impartial administration of justice.  This includes our elected officials, those who work in administration, together with various adjudicative, policing, enforcement and community agencies.  Thank you for the important contribution that you make to uphold our societal values each and every day.

Tradition is and will always be the very foundation, the bedrock of our Courts and our system of justice. But as valuable as our traditions may be, and no matter how much we cherish tradition, it must be tempered by timely innovation. Every law student is taught the metaphor that our law is a living tree, it must and will undergo change to stay relevant to changing times. The two, tradition and meaningful change, go hand in hand and are fundamental to the growth of the common law. Indeed, progressive law reform is itself an important part of our rich legal heritage.

There is today an overwhelming consensus that if the justice system as we know it is to survive, it must undergo significant change to provide greater access to justice for the public. As lawyers and judges we are the change agents who must bring about this much needed transformation.

Chief Justice Beverley McLachlin has championed this cause and identified access to justice as the most pressing issue confronting us. Largely due to her leadership, many individuals and organizations have made access to justice a priority. Justice Thomas Cromwell has contributed greatly by chairing the National Action Committee on Access to Justice in Civil and Family Matters; Treasurer Thomas Conway has established an Advisory Group on Access to Justice; the Canadian Bar Association recently held a national summit and produced a report on “Envisioning Equal Justice”; and The Law Commission of Ontario has issued reports on family and employment law focusing on access to justice. We commend these individuals and organizations for their commitment to this cause.

Many creative ideas and suggestions for reform to the legal system are being generated through these projects. We need visionaries. But the time has come for delivery on these ideas. We can dream and think, but we must do more than that – we must act and deliver on those dreams and thoughts – if we are to succeed in bringing about much needed change. As Thomas Edison observed, “a vision without execution is hallucination”.

The good news is that progress is being made, slowly I admit, but progress nonetheless. When many shoulders are put to the wheel, momentum is created and goals can be achieved.  But, like Robert Frost’s “traveller”, we still have so many promises to keep, and miles to go before we sleep.  So we must persevere:  we must begin by instituting specific reforms targeting areas of urgent need like family law.  Over time, we can undertake broader reforms affecting the justice system as a whole:  “to strive, to seek, to find, and not to yield”.  (You will all recognize this quote as the last line from Tennyson’s Ulysses.)

The twin themes of tradition and innovation lead naturally to a discussion of the Court of Appeal. The Court of Appeal, a Court which is in itself steeped in glorious tradition, is going through a period of unprecedented transition to its complement.

Just last December, Associate Chief Justice Dennis O’Connor retired after an exemplary judicial career. Justice Alexandra Hoy succeeded him and has quickly and quietly established herself as a trusted and wise leader of this Court.  In the interim period, pending her appointment, Justice Stephen Goudge assumed the administrative duties of Associate Chief Justice. On behalf of the entire Court, I thank Justice Goudge for his able assistance.

During my tenure as Chief Justice, nine judges have been appointed to this Court.  Over the past year, the Court has benefitted by the addition of Justice Peter Lauwers and Justice George Strathy to our bench. We welcome our new colleagues and look forward to working with them in the years to come.

In addition to the retirement of Associate Chief Justice O’Connor, there were two further retirements from our Court during the past year. Our esteemed colleagues, Justices Robert Armstrong and Susan Lang, retired after long and distinguished judicial careers. All three brought valuable insight, wisdom and experience to the Court of Appeal. I can state with certainty that the influence of our retired judges will be felt for years to come.

This past spring, we were deeply saddened by the untimely passing of our dear and cherished colleague, Justice Edward Ducharme. He was a principled and intellectually profuse man whose decency brought out the best in people. We have suffered a tragic loss, the full extent of which we may never fully realize.

At this time of reflection on the composition of the Court, as well as on the role that tradition plays in the legal landscape, I am proud to announce that the much anticipated book on the history of the Court of Appeal will be published in 2014. The eminent legal historian Christopher Moore is currently completing the manuscript, which will be published by the Osgoode Society next year. This book, funded by a grant from the Law Foundation of Ontario, will help us better appreciate the history of the Court of Appeal and will make an important contribution to Canadian legal history.

Despite the pace of change to the Court’s judicial complement and the judicial vacancies that have persisted (there are presently four vacancies) the Court has continued to dispose of its caseload in a timely manner.

Civil appeals are generally heard within five months of perfection and criminal appeals within four.

In almost all cases, the judges of the Court released their thorough and well-reasoned judgments within a targeted six-month time period.

I turn now to a review of the Court’s ongoing programme of exchange and outreach activities.

Last October, the members of this Court participated in a joint meeting with the members of the Québec Court of Appeal, hosted by Chief Justice Duval Hesler in Québec City.  This was the second meeting of the appeal courts of Canada’s two largest provinces, the first having occurred two years earlier in 2010 in Ottawa.  In my view, these conferences constitute a bridge, an enjoining, not merely of the courts, but also of languages and court cultures.  It is a worthwhile tradition that I sincerely hope will be continued.  This exchange is not just about the Court or the courts, it is about Canada.

I was honoured to be present in Montréal just two weeks ago at the Opening of Courts of Québec. I am delighted that all three Chief Justices from the Québec Courts are here celebrating with us today.  This exchange is reflective of the strong relationship that has developed between the courts of our two provinces in the best traditions of this wonderful country.

As part of the Court of Appeal’s ongoing judicial outreach, the Court visits a different region of Ontario each year. Next month, the judges of our court will travel to Ottawa. We look forward eagerly to meeting with local members of the bench and bar and students and faculty of the University of Ottawa’s Faculty of Law. For many of us, the chance to interact with the academic community at this innovative and vibrant law school will be a highlight of the year. Our law students are our future strength and the natural wellspring for our profession.

This concludes my report on the Court of Appeal. As I said at the beginning of these remarks, in December I will be retiring after more than twenty years on the bench, almost one-third of which I have been privileged and honoured to serve as Chief Justice. I look forward to the years ahead with bittersweet emotion in the hope that I might continue to serve together with you in other capacities to meet the great challenges that face our justice system. I trust that I may find, in the words of Tennyson, that “some work of noble note, may yet be done”.

It has been an especially wonderful last six years. There are too many people to name, but I want to thank my family, my friends, and my colleagues, each and every one of you, for all of your sound advice and loving support of me. Through “the thunder and the sunshine”, you have been a constant comfort to me.

In conclusion, I repeat the words of the French poet Lamartine:

Ô temps ! suspends ton vol, et vous, heures propices !
Suspendez votre cours :
Laissez-nous savourer les rapides délices
Des plus beaux de nos jours !

Oh time! suspend your flight, and you, propitious hours !
Suspend your course:
Let us savour the fleeting delights
The very best of our days!

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