Report of the Chief Justice of Ontario upon the Opening of the Courts of Ontario for 2002

Chief Justice R. Roy McMurtry

Welcome and Introduction

Chief Justices, colleagues, Mr. Attorney, Mr. Treasurer, distinguished representatives of the Bar, ladies and gentlemen. 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, of course to be joined on the dais by Chief Justice Lesage of the Superior Court of Justice and Chief Justice Lennox of the Ontario Court of Justice.

I am also very pleased that we are joined today with 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, justices of the peace and legal and administrative staff from all of our courts and the Ministry of the Attorney General.

I would also like to recognize the presence this afternoon of those representing many important legal associations.

I would like firstly to report on the work of the Court Of Appeal for Ontario, together followed by some brief general observations with respect to the administration of justice in Ontario. My remarks 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 seventeen full-time and five supernumerary judges.

All of the members of our court were delighted to welcome Justice Eleanore Cronk to our Court at the end of the summer. Before her appointment to the Court Eleanore Cronk was one of Canada’s most distinguished advocates.

The members of the Court are of course, very proud of the thorough, comprehensive and sensitive manner in which our colleague Justice Dennis O’Connor conducted the Walkerton water inquiry. We are all very pleased with his appointment as the Associate Chief Justice of Ontario and his official swearing in will be on January 21st.

I would like to take this opportunity to again thank the former Associate Chief Justice Osborne for his many important contributions to the work of the Court and to wish him every continuing success in his important responsibilities as the Integrity Commissioner for Ontario.

Workload of the Court of Appeal

The Court of Appeal continues to be by far the busiest appellate court in the Canada.

Six years ago there were 1,582 civil cases perfected and waiting to be heard. That figure has been reduced to approximately 300 as of today. The hearing of non-expedited civil appeals is now four to six months from perfection. The time frame relative to 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, a substantial increase in the number of applications for leave to introduce fresh evidence continues to cause considerable delay in a growing number of appeals.

I would like to take this opportunity also to publicly thank all of my colleagues on the Court for their continuing dedication to the resolution of appeals in a just and timely fashion and as well to thank the administrative, secretarial and legal staff of the Court of Appeal for their continuing commitment and dedication to the work of our Court.

Public Legal Education

Last year at the Opening of the Courts I mentioned the new Public Legal Education Initiative and also the new pro bono initiatives which were evolving.

With respect to public legal education Chief Justices Lesage and Lennox and I have continued to participate on a steering committee comprised of judges, lawyers and educators

While members of the legal profession and judiciary have been involved in public legal education initiatives over many years with the exception of an annual law day it has been largely on an ad hoc basis.

I would like to thank the Law Foundation of Ontario for providing the funding for a full time co-ordinator Ms. Taivi lobu. who has travelled throughout the province co-ordinating the public legal education initiatives. Her dedication to the program has been an inspiration to us all. I should also like to express my appreciation to Captain Doug Taylor, site manager for the commissionaires, for his outstanding efforts in co-ordinating the Toronto Courtroom and Classroom Project.

The Court and Classroom Project which got into high gear in September has resulted in approximately 30,000 students visiting courtrooms across Ontario. There are now legal education committees in 41 communities across the province. Almost two hundred judges have volunteered to participate province-wide in the initiatives together with many dozens of lawyers with the result that students' courtroom visits have become much more meaningful. Students are meeting judges and lawyers who explain the functioning of the justice system and respond to questions.

An Ontario Courts website has also been established were online resources will be available to teachers, students and members of the public.

Law Day last year was expanded to a full week of activities which commenced on April 23 and this year will commence on Monday April 15.

While the efforts of the Steering Committee on Public Legal Education have been largely focused to date on the schools, we anticipate that the education initiatives will over time be expanded to the broader community.

I am pleased to have the opportunity of thanking the members of the Public Legal Education Steering Committee, many of whom are here this afternoon, for their ongoing commitment to this important initiative.

Pro Bono

On the pro bono front, I am pleased to report that during the past year there has been significant activity is strengthening the concept in a number of areas. At the same time I again stress that pro bono work has long been a tradition of the legal profession in Ontario and I recognize that pro bono work can never be a substitute for an adequately funded legal aid plan.

It is worth repeating the statement of the late Chief Justice Brian Dickson with respect to the importance of pro bono initiatives:

A number of organizations have been developed to facilitate the delivery of pro bono legal services in Ontario. These organizations which include Pro Bono Students Canada, Volunteer Lawyers Services, Legal Aid Ontario Mentorship Services, the Dickson’s Circle, Connecting Communities With Counsel and the Ontario Pro Bono Initiative. These groups have been meeting and networking in an effort to complement each other’s services and programs.

I have been attending pro bono committee meetings with the treasurer of the Law Society of Ontario and some of his officials, representatives of Legal Aid Ontario and of the Law Foundation of Ontario as well as Dean Ron Daniels of the University of Toronto Faculty Of Law. the goal of these meetings has been to support the establishment of an organization which would play a major role in the co-ordinating and delivery of pro bono legal services in Ontario, enhancing the capacity of the current service delivery systems, identifying gaps and needs, conducting conferences and research and developing educational and training programs for those engaged in the delivery of pro bono legal services.

The result has been the incorporation of Pro Bono Ontario which will hold its first coa-parkedrd meeting tomorrow. Again I would like to thank the Law Foundation of Ontario for enabling the hiring of a co-ordinator, Ms. Lynn Burns, who has developed an important implementation plan.

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 the 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.

Youth at Risk

The tragic events of September 11 last year have focussed much of our attention on the need to strengthen our national security against external threats. While this is of course an important goal I hope that it will not distract our collective attention from the needs that have to be addressed within our society. Many of those needs, of course, relate to the disadvantaged and the vulnerable. In particular the justice system bears daily witness to the challenges and tragedies represented by young people at risk in the sense that their environments have the potential to encourage serious criminal activity.

During the past year these ongoing challenges have been the subject of informal discussions that I have had with community leaders and elected members of municipal councils, the Provincial Legislature and the Parliament of Canada.

These elected representatives agree that the challenges facing our larger cities in particular require special attention and a greater co-ordination between all three orders of government given the limited resources available. These elected representatives have shared with me their frustrations with respect to the difficulties faced in bringing about a meaningful co-ordination of government initiatives required to address challenges represented by our growing population of youth at risk.

I therefore respectfully suggest that governments take steps to develop more effective partnerships in the co-ordinating of the appropriate and necessary initiatives.

The Role of Judges In Relation To Collective Security and Individual Rights

In the context of September 11, I believe that judges are very much aware of their growing responsibilities as our governments strive to maintain the appropriate balance between collective security and individual rights.

While judges are unable to participate directly in the ongoing debates related to individual rights in an age of heightened security concerns, it is the courts where the ultimate debates may take place in the context of our Charter of Rights.

While judges have the task of interpreting the often uncertain provisions of the Charter, I would like to stress that judges recognize that their tasks must be exercised in a principled fashion. We are very much aware that any suggestion of judicial imperialism can only serve to undermine the public confidence which is essential to the discharge of our responsibilities. Indeed our courts have recognized in many decisions the reality that without public confidence the courts cannot effectively fulfill their role in society.

Any uncertainty in a law is a reflection of the reality that law is not mathematics. The uncertainty derives from human limitations, the nature of society, and the unpredictability of the future. There is simply no one single legal answer to every legal problem. Judicial creativity is part of legal existence and law without discretion has been described as a body without a spirit.

Courts are not representative bodies in that they do not represent specific or special interests. They are impartial bodies that must reflect the basic values of our society. Courts are not necessarily democratic institutions as they are not bound by the majority of public opinion. However, I believe that when the majority takes away the rights of a minority that is not democracy. Democracy is, therefore, a delicate balance between majority rule and individual rights.

The values which should direct a judge are basic and fundamental values rather than the outcomes of public opinion surveys. They cannot be the transient and revolving fashions of the day. A judge is not required to express the changing winds of the day but again is to express the basic values of our society and when a society is not faithful to its basic values, a judge may be required to intervene.

In many cases, judges are told that the solution to the conflict lies in a balance between the conflicting values. However, there is no legislation or legal precedent that adequately indicates what weight should be attached to each value and how a judge should balance between the conflicting values.

However, it does not follow that a judge can do whatever he or she wishes. There is no absolute judicial discretion; indeed, any absolute discretion for judges or any other public official would be the beginning of the end for democracy.

The maintenance of confidence in the administration of justice does not mean a need to seek popularity but it means that the judicial discretion must be perceived as being exercised objectively and impartially through a neutral application of the laws.

All the judges in Ontario are very mindful of the sworn obligations that we undertook when we assumed judicial office and a formal Opening of the Courts is an appropriate time to reflect on our responsibilities and obligations.

I would like to conclude by wishing everyone a happy, healthy and prosperous New Year.