OPENING OF THE COURTS 2021
The Honourable George R. Strathy
Chief Justice of Ontario
Remarks Delivered at the Opening of Courts Ceremony September 14, 2021
In my remarks today, I intend to offer some reflections on our justice system and its place among other institutions. These remarks will not provide a detailed review of the Court of Appeal’s past year. Nevertheless, I would be remiss if I did not, at the outset, acknowledge the extraordinary work of the judges and staff of the Court of Appeal, all of whom have worked diligently to maintain and transform the Court’s operations this past year during the most challenging of circumstances. I will share more details about this in a written supplement to these remarks that will be posted on the Court of Appeal’s website.
I would like to turn now to a personal reflection.
I started my legal career exactly 50 years ago, when I enrolled in the Faculty of Law at the University of Toronto, in September 1971.
It was a turbulent time for our Country. During the “October Crisis” one year earlier, the Government of Canada had enacted the War Measures Act in response to the kidnapping of a British diplomat and the Deputy Premier of Quebec. As a result, for the first occasion in peacetime, fundamental civil liberties were denied, the right to habeas corpus was suspended, the ability to search without a warrant was permitted, and law enforcement authorities were allowed to detain citizens without charge. It was a time of intense public concern and debate; a time when strong feelings were engaged, both for and against the actions taken by the government. It felt like a social earthquake had occurred. To this day, the chill of that turbulent time remains vividly embedded in my memory and it affects my view of the law and the world.
And here we are today, half a century later, dusting ourselves off as we gradually emerge from the rubble of another social earthquake; one that seems cataclysmic. Indeed, this is a global earthquake. I don’t recall a time when we have felt quite so vulnerable – or quite so anxious – about what the future holds for ourselves, our children and their children, and the communities we share.
Yet, as we did 50 years ago, and as our ancestors did in the 1920s and the 1930s and 1940s, after two world wars and a global recession, we appear to be slowly and cautiously re-building and returning to normal – or to something that we are now calling a “new normal”.
Unfortunately, the path out of a crisis rarely follows a straight line. And as you know, we face an uncertain autumn. The decision to hold this ceremony virtually for a second year reflects the need for vigilance. Looking at the positive, our experience with remote technology has made the Opening of the Courts Ceremony more accessible than ever before, to the bar and the public.
On this occasion last year, I expressed optimism that this crisis would make us stronger. I remain optimistic today. Yes – we are in a fourth wave and that path before us is uncertain, but we continue to make progress, fortified by the many lessons we have learned – and lessons we have heeded – during the past two years.
Last year, I commented that our success in weathering this horrific pandemic as well as we have, was a credit to the strength of our public institutions. Public institutions that are foundational to our strength and cohesion as a society.
And just as these institutions have been essential to guiding us safely through the health crisis, they will be instrumental to our recovery.
In fact, buoyed by Canadians’ trust in our public institutions, our country continues to sit in a relatively enviable position in the world.
Despite some continuing concerns and hesitancy, most Canadians recognize that the new vaccines are fundamental to our recovery. And today, our vaccination rates are amongst the highest in the world – a testament to the guidance of our medical, scientific, and academic communities, and the justifiable trust we place in them. We might grumble and grouse, but Canadians, by and large, have individually accepted the measures necessary to protect the collective: masking, testing, social distancing, and the need to be vaccinated. We do this because of the strength of our public institutions and our confidence in those institutions.
Our public institutions and the people who work in them have been strained and stressed during the pandemic. But the health care system continues to sustain us; the scientific and academic communities continue to provide us with the information needed in order to remain safe; the public education system, despite its enormous challenges last year, continues to teach our children; and, the institution we celebrate today – the justice sector and also those who work in it – continues to deliver fair, open and impartial justice and has done so, without significant interruptions, since the onset of the pandemic.
I am particularly encouraged by the ability of the justice system to innovate and to reinvent its practices and procedures to ensure that justice is done – and is seen to be done – in these very challenging times.
Prior to the arrival of the coronavirus, our courts had functioned in ways unchanged for generations. In fact, in my fifty years as an observer of the law, it often struck me that the law was changing much faster than the way in which lawyers practised, judges judged, and courts functioned. Speaking over the years, I have often joined others in lamenting the slow acceptance of technology by the justice system. Had my late grandfather wandered into a 21st century courtroom after he returned from the First World War, he would have felt right at home. Mounds and mounds and mounds of paper. This is no longer the case. In the course of eighteen months, our courts have successfully catapulted themselves out of a dusty and fusty 19th or 20th century existence into a world of remote appearances, digital records and electronic filing. Changes that had been sought, but unrealized for years.
Much can be accomplished, and much has been accomplished, when the Judicial Branch and the Executive Branch work together, respectful of their separate roles, but with the common goal of supporting and improving an important public institution. Modernization initiatives, which long evaded us, have been successfully introduced in a matter of months, driven by the pandemic but realized through unprecedented collaborative efforts of the bench, the bar, and the Ministry of the Attorney General.
Public trust in the courts, fostered by the support of the legal profession, has permitted us to introduce wholesale innovations to traditional processes and protocols and for those changes to be accepted by those who attend our courtrooms, either remotely or in person.
Our modernization has been rapid. In the coming months and years, we will need to evaluate what we have done and continue to invest in technology to ensure that we have the best tools and support to provide efficient and effective access to justice. We will also need to ensure our courts remain accessible to everyone, not just those equipped with laptops, cellphones, and high-speed internet, but also the most vulnerable amongst us who may lack those tools or the abilities to use them.
Finally, we should remember that one of the things we have learned through the pandemic is that while almost any type of hearing can occur remotely, many matters are still best addressed in-person. While time and resources can be saved dealing with many routine and procedural matters remotely, many substantive matters will continue to benefit from face-to-face hearings. I suspect that, as we move forward, we will continue to recognize that technology can bring efficiency, cost savings and convenience, thereby promoting access to justice without compromising the just determination of proceedings on their merits.
We have learned many things. Through immense goodwill, commitment, constructive dialogue and cooperation with the bar and the Ministry of the Attorney General, we have learned that the justice system can change. We can modernize. We can continue to deliver justice during a time of unprecedented challenges. We are resilient and adaptable.
I return to the theme of public confidence in the institutions of our democratic society.
Just as we have remained cautious and vigilant about public health in our society, we must remain vigilant about safeguarding the institutions of our democracy.
From our forebearers, we are beneficiaries of the Parliamentary system of government and what is known as the rule of the law. Over time, the Rule of Law – the common law of the English-speaking provinces and the Civil law of Quebec – have served us well. The foundations of the Rule of Law are the habits, traditions, and customs of our community. And the habit of obeying the law, the psychology of obedience, is strengthened when the law is in close touch with the community it serves.
So why do we obey the law? Lord Sumption, in his brilliant Reith Lecture Series, answered the question this way:
“Fear of punishment is only part of the answer and not even the main part. Fundamentally, we obey the State because we acknowledge its legitimacy. Legitimacy is a vital but elusive concept in human affairs … Legitimacy is less than law, but it is more than opinion. It’s a collective instinct that we owe it to each other to accept the authority of our institutions, even when we don’t like what they are doing…It depends on an unspoken sense that we are in it together.”
We must and should recognize and respect our unique perspectives and opinions, and welcome civil disagreements and controversy. The honest recognition of these differences ultimately strengthens our sense of community, and our sense that we are all in this together. A sense that is foundational to the legitimacy of our public institutions.
Public confidence in the courts is rooted, in part, in the principles of judicial independence, for it is judicial independence that guarantees that our differences and disputes will be fairly heard and decided by impartial judges. The pandemic – with the myriad changes it quickly introduced to the justice system – highlighted the constant balance that must always be respected amongst the judiciary, the legislative branch, the executive branch and litigants themselves, each with its own independence, but mutually respectful of our separate roles. While collaborating collegially with others, courts also worked diligently to ensure their independence was not compromised by the urgency created by the pandemic.
Public trust is also fragile. And it will be eroded if those responsible for the administration of justice fail to understand and respect all those we must serve. Public trust in the judicial branch as an institution, and public confidence in the administration of justice, are undermined when some of the most vulnerable members of society believe in their hearts that the system is beyond their reach, doesn’t understand or appreciate their concerns, takes too long, or it is too expensive and cumbersome to serve their needs.
The coronavirus shone a bright and critical light on the vulnerabilities of our society, magnifying pre-existing inequalities. Those already struggling and marginalized – the homeless, the impoverished, members of racialized communities – have suffered, and continue to suffer, the greatest losses and hardships.
These past months have also been filled with stark reminders of racism in Canada. We mourn the deaths of thousands of Indigenous children, their unmarked graves recently discovered, the legacy of Canada’s residential schools. Alongside these tragedies, it is shocking to note that incidents of hate crimes are on the rise across the country, targeting, among others, Muslims, Asians and Jews.
Confidence in Canada’s public institutions – including the justice system — depends on our commitment to acknowledge and address historic and ongoing injustices that divide and diminish all of us. Without that commitment, our institutions will lose their credibility and, with it, trust in their ability to sustain all of our communities.
Constant vigilance must be maintained going forward. During this time of social upheaval – the social earthquake – members of the public want to know and need to know that the institutions they trust are accountable, accessible and responsible in the discharge of their duties, serving the public with integrity and efficiency. And they need to know their concerns are acknowledged, their voices heard, and their opinions respected. I will not comment on whether the harsh measures used during the October Crisis of my youth were necessary in the circumstances. But I can say that they have stuck with me my entire life, and I have always felt that such measures will always be less effective than the long, hard journey to maintain trust and legitimacy.
We know that to sustain our successes, we must continue our collaborations and maintain the public’s trust to effect positive and meaningful change.
The lessons we have learned – and heeded – during the pandemic provide us with a solid and achievable framework for moving forward. Working together, collaborating and cooperating, we have come through a time the likes of which we have not seen in our lifetimes. We have achieved remarkable accomplishments. We know what we need to do. It is up to us to make it happen. I remain confident that we can do so.
I thank both Chief Justice Morawetz and Chief Justice Maisonneuve for their inspired leadership as we have worked together to reconfigure the justice system. I also thank Minister Downey, Deputy Attorney General Corbett and his colleagues and Ministry staff members who have worked so closely and collaboratively with us these past eighteen months. I believe we have laid a firm foundation for the construction of a more just, equitable and sustainable justice system.