Chief Justice George Strathy
Opening of Courts Remarks
September 10, 2019
My colleagues, Chief Justice Geoffrey Morawetz, Chief Justice Lise Maisonneuve and I welcome you to the Opening of Courts for 2019.
This is Chief Justice Morawetz’s first Opening of Courts ceremony in his new capacity as Chief Justice of the Superior Court of Justice.
It is a privilege to share this dais with him. He has been a colleague and friend for many years, and I look forward to continuing working together with him and with Chief Justice Maisonneuve in the years ahead.
As you know, Chief Justice Morawetz replaces The Honourable Heather Smith, who retired in June of this year after serving as Chief Justice of the Superior Court of Justice for over 16 years, and as a judge for an extraordinary 36 years. She has been a visionary leader of the Superior Court of Justice, for the judges of her court, and for all Ontarians. I wish her well in the next stage of her life.
You may have noticed that Associate Chief Justice Frank Marrocco joins us on the dais this afternoon. In recognition of his longstanding leadership at the Superior Court of Justice, Associate Chief Justice Marrocco will deliver the remarks on behalf of the Superior Court this afternoon.
Today’s event celebrates the role of the courts in our constitutional democracy. It is an occasion to celebrate those who are vital to the operation of the justice system. They include:
I would also like to acknowledge the presence of members of the media today. They, too, are vital to the health of our justice system. Their work increases public awareness, openness and transparency, all of which are necessary for maintaining the legitimacy of and public confidence in the administration of justice.
Let me speak for a few minutes about the role of the courts and some of the challenges we face. Courts exist to provide a forum for the orderly resolution of civil and family disputes; the protection of children; and the prosecution and defence of criminal charges.
At this ceremonial sitting of the three courts, our mood is justifiably celebratory. This is a majestic courtroom and our proceedings are orderly and dignified. But if you were to come here another time and spend the day in this courtroom, or in any one of over 250 courtrooms across this vast province, including courtrooms in this building or a few blocks away, you would see that the process of administering justice is not always so orderly.
This is no one’s fault. It reflects the reality of court proceedings and the lives most affected by those court proceedings.
Attending these courtrooms, as I know many of you do regularly, one sees the intersection of many of society’s greatest challenges: poverty and economic disparity; homelessness; family breakdown; addiction and mental illness; alienation and loneliness; discrimination and marginalization; cycles of crime and over-incarceration; violence and abuse.
Many people caught up in court proceedings face a multiplicity of these challenges, which are often inter-generational.
These are the most vulnerable members of our society. They come to our courts with their lives in turmoil, facing life-altering consequences. They are not here because they want to be here – they are here because they are compelled to be here. And they are ill-equipped to navigate the legal process on their own. Yet, many of them – far too many of them – are unrepresented.
Mahatma Gandhi said that, “A nation’s greatness is measured by how it treats its weakest members.” So what is the standard against which our legal system is measured, and how do we measure up?
Once a person is before the courts, it is our collective responsibility to ensure that person is treated fairly and with dignity, and to ensure their legal rights are protected and respected. The judiciary, the bar and the state share that responsibility. It applies to every person, but particularly the most vulnerable.
On a daily basis throughout this province, judges discharge their obligation to assist unrepresented litigants. There are legal and practical limits on their ability to do so. I can tell you from personal experience, shared by every judge in this room, that the pace of a proceeding with an unrepresented litigant slows to a crawl and that every sector of the justice system bears increased costs as a result.
The bar – Crown, defence and the civil bar – do their best as well. There is, and always has been, a willingness of the bar to provide assistance to unrepresented litigants. Many of the organizations in this room and lawyers across the province dedicate countless hours to pro bono legal services. But they cannot do it alone.
Our system is not, and has never been, perfect at addressing these legal needs, but nor are these problems insurmountable. As The Right Honourable Richard Wagner, the Chief Justice of Canada, has observed, “Judges, lawyers, and policymakers have made extraordinary efforts to improve access [to justice] in recent decades [With] legal clinics, pro bono programs, dispute resolution mechanisms, and legal information initiatives [we have all helped to] shine the light of justice into the dark.” Over the course of decades, much work has been done to improve legal aid and access to justice.
The state – successive governments – has also attempted, in good faith, to address these issues. It is not for judges to determine how public funding are to be allocated. The needs of the justice system must be balanced against challenges and demands of public health, education and welfare, and a host of other necessities of modern society. But what we judges can say is that reducing legal representation for the most vulnerable members of society does not save money. It increases trial times, places greater demands on public services, and ultimately delays and increases the cost of legal proceedings for everyone. We can also say that public confidence in the administration of justice is enhanced when the most vulnerable in our society are given a voice, so they can truly be heard.
Recent and scheduled reductions in funding of Legal Aid are of great concern to those involved in the justice system, including many of those in this courtroom. I am encouraged to hear that the Attorney General recently met with legal organizations to hear their concerns about legal aid and that he is open to discussing solutions. The issue is urgent. I believe that if we harness the expertise, creativity and goodwill of the constituencies represented in this room, we can find solutions to this test of our shared duty to protect the most vulnerable.
I turn now to some brief remarks about the Court of Appeal for Ontario. The caseload at the Court of Appeal has grown incrementally, with the court having more than 1,000 published decisions this past year.
For the first time in many years, we begin this fall with a full complement of judges and no vacancies on the Court of Appeal. Justice Eileen Gillese and Justice Michael Tulloch have returned to the court after completing inquires and reports for the Provincial government. Justice Tulloch completed his report on police street checks in December and Justice Eileen Gillese recently completed a commission of inquiry and report on the safety and security of residents in long term care. Both have provided important recommendations, vital for the protection of some of our most marginalized and vulnerable citizens.
Our judicial complement has been augmented by the addition of three new accomplished jurists this past year. Justice Benjamin Zarnett and Justice Mahmud Jamal have joined us directly from private practice after achieving reputations as two of Canada’s most accomplished commercial and administrative litigators. Justice Julie Thorburn joins us from the Superior Court of Justice where she heard both civil and criminal cases and was the team lead for the Divisional Court. We are delighted to have them as our colleagues.
In 2019, the CBC webcast two hearings from the Court. The first was Ontario’s reference regarding the federal Greenhouse Gas Pollution Pricing Act. The second was the appeal concerning provisions of the Better Local Government Act which affected Toronto’s municipal elections. We welcome this media interest in broadcasting our hearings, and we expect there will be other opportunities to broadcast hearings that are of public importance and interest.
I am pleased to announce that with the assistance of the Ministry of the Attorney General, we conducted a competitive procurement process in 2019 to obtain a new electronic case management system for the Court of Appeal and expect to award a contract this fall. When fully implemented, the case management system will allow us to work more efficiently, respond more quickly to media and public requests for information, and allow for more efficient electronic filing.
2019 also marks the 20th anniversary of the Court’s Pro Bono Inmate Appeal Program. Started by the Late Honourable Marc Rosenberg, together with Marie Henein and Alison Wheeler, it is a shining example of one of the areas where we have worked cooperatively to improve access to justice in past decades. Through the program, senior members of the criminal defence bar provide pro bono duty counsel assistance for unrepresented inmates in Kingston and Toronto. The program is managed cooperatively with the leadership and support of the judiciary, the private bar, Crown counsel, the Ministry of the Attorney General, and court and corrections staff across Ontario. In its 20th year, this is a program of which we are very proud.
In concluding on the activities of the Court of Appeal, I wish to acknowledge the extraordinary and skillful leadership of Associate Chief Justice Alexandra Hoy, our Registrar, Daniel Marentic, and our Senior Legal Officer, Falguni Debnath. They make all of us very proud of our court.
There is much to be proud of in our justice system. Over the course of decades, we have made significant improvements to our justice system and improvements continue to be made. Our weakness is that we continue to have difficulty meeting the legal needs of some of our most vulnerable community members. As we look to the future, we will need to find ways to enhance, not detract, from the services we provide to address these needs.