2006 Opening of the Courts Speech
January 4, 2006
Chief Justice Brian W. Lennox
Chief Justices, colleagues, Mr. Attorney, Mr. Acting Treasurer, members of the bar, honoured guests, ladies and gentlemen:
INTRODUCTION
Depuis que j’ai pris la parole dans cette enceinte il y a un an, la Cour de justice de l’Ontario a grandi une fois de plus. Elle se compose maintenant de 282 juges à temps plein et de 308 juges de paix, oeuvrant dans plus de 200 palais de justice à la grandeur de la province.
FAMILY LAW
This past year has seen major adjustments in the Court’s long-term approach to family law. A decade ago, with the creation of the Family Court Branch of the Superior Court of Justice in 1995, it appeared that the unified family court model would expand rapidly through Ontario. This impression was reinforced in 1999 with a significant expansion of the Family Court Branch and again in 2002 with the announcement of further Family Court appointments to come in 2005. It now appears clear that the pace of expansion will not be as rapid as first thought and that the Ontario Court of Justice will retain its important family law jurisdiction well into the foreseeable future. In this context, it is important to note that, while the Court has never wavered in its support for the concept of a unified family court serving all of Ontario’s families and children, wherever they are located, it has also never wavered in its commitment to the needs of its own family law clientele. Today, the Ontario Court of Justice retains its family law jurisdiction in approximately 60% of the province, either sharing that jurisdiction concurrently with the Superior Court of Justice or exercising it exclusively in the all-important area of child protection. Over the past year, the Court has made family law one of its most important priorities. We have reinforced our internal Advisory Committee on Family Law, created a permanent advisory position of Family Law Counsel within the Court, and begun consultation with the judges of the Court to define a five-year vision for our family law work. We have instituted quarterly meetings with the Office of the Children’s Lawyer and, together with Senior Justice David Aston of the Family Court Branch of the Superior Court of Justice, have created a joint judicial working group on child protection issues to discuss issues of mutual concern.
In addition, with the National Judicial Institute, we are in the process of developing education programming that will provide intensive education sessions on family and child protection law to criminal law specialist judges who are interested in hearing family law cases, thereby improving our ability to deal with our family law caseloads.
In 2005, the Attorney General appointed six additional judges to provide improved access to the family law services of the Ontario Court of Justice, particularly in child protection cases. Those judges have been assigned to the Northwest, Northeast, West, Central West and Toronto regions where they are expected to have a substantial impact on family law caseloads. At each of the court locations where these judges were assigned, the Court and the Ministry have jointly established pilot court and community liaison committees. The goal of the pilot committees is to identify and address child protection backlog issues, and to promote dialogue and issue resolution at the local level. Once the pilot committees have submitted their reports early in 2006, we will discuss with the Ministry whether similar committees should be created throughout the province.
The Ontario Court of Justice has also continued to work closely with the Ministry of the Attorney General, the Ministry of Children and Youth Services and justice partners on the child protection backlog through the Justice Summit and its Family Courts Steering Committee.
We will in 2006 continue discussions with the Ministry of the Attorney General on the expansion of family services within the Ontario Court of Justice. Families and children in crisis require the same services and levels of service from and in support of their family courts, regardless of their geographic location and regardless of the fact that their needs are met by the Superior Court of Justice, by its Family Court Branch or by the Ontario Court of Justice. Our goal is to ensure that the services necessary to support families are available wherever and whenever they are needed.
As I have indicated in earlier Opening of Courts remarks, delays in child protection cases have been and continue to be a major concern in the Ontario Court of Justice. Because they involve children who may be in need of protection, these cases also necessarily touch upon some of the most fundamental values of our society. I commend the efforts of the Ministry of Children and Youth Services to put measures in place to encourage earlier permanency planning for children in its new Child Welfare Transformation Strategy.
No one should expect that child protection backlogs within the Ontario Court of Justice will disappear overnight. While the new judicial appointments will have an impact, they are not in themselves a panacea for all of the challenges facing the Court. The causes of backlogs are complex and often systemic and there is no single, simple solution to them. However, the additions to judicial complement, the creation of the pilot committees, and the work that is taking place as part of the Justice Summit process, are important steps toward a resolution of problems that for too long have beset our family justice system.
CRIMINAL LAW
In the area of criminal law, the Court continues, along with the Ministry, the bar, police services and others, to work on reducing criminal court backlogs and ensuring timely access to justice. We have for a number of years had a variety of local court management committees, local initiatives and regional meetings involving different participants, working, among other things, on the effective control of criminal caseloads and the prevention of backlogs. Since 2002, the Justice Summit has become an essential element in developing the strong relationships and generating the innovative solutions required to create a better criminal justice system for Ontario. In the area of criminal law, within the Justice Summit, the development of the bail and criminal case management protocols has been of significance. As these protocols are implemented provincially, criminal case management and bail proceedings should see incremental improvements.
The workload of a Court is impacted directly by a number of factors, over most of which the Court has no control. In the area of criminal law, increases in criminal activity, changes in legislation, in government policy, in the policy and practices of police or the Crown represent such factors. Changes in the workload of a Court are most directly impacted by changes to its caseload. The latest figures available indicate a likely increase in charges received by the Court across the province of over 12,000 charges, or 2.3%, from 2004 to 2005. This is largely the result of increases in adult criminal and federally prosecuted charges and will represent a total increase in charges received of 17.6% over the last 5 years.
The Court continues to use the four additional judges appointed in 2002 and the two per diem judges funded by the Attorney General to address immediate needs at specific court locations as well as for backlog reduction initiatives. In 2005, targeted backlog reduction initiatives took place in North York, Oshawa, Ottawa, Scarborough and Brampton. As I indicated last year, the Brampton initiative represented the largest single infusion of backlog resources in the history of the Court. It also involved extensive cooperation among the judges of the Court, the Superior Court of Justice, the Court Services Division, Crown Attorneys, the bar and Peel Regional Police. The assignment of over 500 additional judge days led to a modest decline in pending charges but a substantial reduction in the time to trial. The decision has now been made to hold the time to trial within reasonable limits by assigning additional resources as required, rather than by trying to deal with any increase in time to trial in Brampton by successive “blitzes”, which tend to have both positive and negative impacts on scheduling.
Among the other backlog reduction projects, the Oshawa initiative was particularly successful, reducing the time to trial from eight months to four months.
In 2006, the Court will concentrate its backlog reduction initiatives on Newmarket, Ottawa and Windsor.
JUDICIAL EDUCATION
The Ontario Court of Justice is viewed as a leader in judicial education by many Courts in Canada. Judicial education is one of the primary activities of the Ontario Conference of Judges (the judges’ association for judges of the Court). Together with the Court’s Education Secretariat (the body which sets education policy and coordinates education within the Court), the Conference is involved in presenting a total of close to 50 days of education programming for judges in varying formats each year. While many of the programs have been developed and are presented by the judges themselves, frequent use is made of outside resources (judges from other Courts, lawyers, academics, government and law enforcement officials, and other professionals). Similarly, judges of the Ontario Court of Justice frequently participate in educational programs organized by other bodies both within and outside the province of Ontario. On average, each judge of the Court will attend between seven and ten days of continuing education presented by the Court in a year. Judges are also encouraged, where circumstances permit, to identify and attend external programs of interest and benefit to themselves and to the Court.
On other occasions, I have spoken of the strong relationship that the Court has developed in the field of judicial education with the National Judicial Institute (NJI). In 2000, the Ontario Court of Justice entered into an agreement with the National Judicial Institute to create the shared position of Education Director for the Court and of NJI Coordinator of education programming for provincial and territorial Courts across Canada. This agreement has provided important benefits to the Ontario Court of Justice, the NJI and a variety of Courts across Canada and has led to the development of innovative judicial education programs using a variety of teaching methods, providing access to resources that might not otherwise have been available to the Court. The Ontario Court of Justice is pleased with the relationship that it has developed with the National Judicial Institute and with the manner in which that relationship has permitted it to strengthen its own education programming and to contribute to the education programming developed for other Courts. Both nationally and internationally, Canadian legal education and the Canadian justice system enjoy an enviable reputation.
JUDICIAL APPOINTMENTS ADVISORY COMMITTEE
The Judicial Appointments Advisory Committee (JAAC), first created as a pilot project by Attorney General Ian Scott in 1989, has become one of the principle underpinnings of the modern Ontario Court of Justice. In 2005, 16 judges were appointed through the Committee process. The Committee is composed of 13 people: two judges (appointed by the Chief Justice of the Ontario Court of Justice), three lawyers (one appointed by each of the Law Society of Upper Canada, the Ontario Bar Association and the County and District Law Presidents’ Association), one member appointed by the Ontario Judicial Council and seven persons who are neither judges nor lawyers, appointed by the Attorney General. The work is intensive and time-consuming, but absolutely essential to the success of the appointment process. The Committee advertises each vacancy as it arises, reviews all applications, conducts discrete inquiries, interviews candidates and finally submits a short list of candidates recommended for appointment to the Attorney General. The Attorney General may only appoint from the list of candidates received from the Committee. This Ontario process remains the model of an independent and objective judicial appointment process and has ensured both the continuing vitality and the constant renewal of our Court. Its merits have been recognized, not only within but also outside of Canada. As is my custom on occasions such as this, I would like once again to recognize the critical importance of the work of the Judicial Appointments Advisory Committee and to thank each one of its members for their dedication and commitment.
(See Judicial Appointments for details of the structure, composition, policies and procedures of the Judicial Appointments Advisory Committee.)
ONTARIO JUDICIAL COUNCIL
Over the past year, I have again had the honour of serving with Chief Justice McMurtry as Co-Chair of the Ontario Judicial Council.
The year on which I am reporting to you today (April 1, 2004 to March 31, 2005), was the Judicial Council’s tenth year of operation. The Council received 36 complaints as well as carrying forward 35 complaint files from previous years. Of these 71 complaints, 52 were closed before March 31, 2005, leaving 19 complaints to be carried over into the eleventh year of operation.
An investigation was conducted by a two-member complaint subcommittee in the case of each complaint received. Where necessary, the subcommittee reviewed the transcript and/or the audiotape of the proceedings that took place in court. In some instances, further investigation was conducted as required. In all cases, once the complaint subcommittee had completed its investigation, it submitted its recommendations with respect to the complaint to a four-member review panel for decision.
The Judicial Council dismissed 41 of the 52 complaint files that were closed in the tenth year. The complaints that were dismissed either were outside the jurisdiction of the Judicial Council or involved allegations that were determined to be unfounded after an investigation had been completed. One complaint file was closed when the judge involved resigned from the bench before the investigation could be concluded, effectively ending the jurisdiction of the Council to deal with the complaint. One file was referred to the Honourable Heather Forster Smith, Chief Justice of the Superior Court of Justice, since the complaint originated from the Small Claims Court. In seven complaint files, the review panels referred the matters to me in my capacity as Chief Justice to speak to the judges in question. Public hearings were held with respect to two complaints. In one case, the judge was continued in office at the end of the hearing. In the other, the judge resigned after the Council had made a finding of misconduct but before disposition by the Council.
Full details of the hearings can be found at the Court’s website. Case summaries of all of the complaint files closed during the tenth year of the OJC’s operation will be included in the Council’s 10th Annual Report and will be posted on the Court’s website following tabling of the Report in the Legislative Assembly.
JUSTICES OF THE PEACE REVIEW COUNCIL
During the past year, I also had the honour of serving as Chair of the Justices of the Peace Review Council (JPRC). The mandate of the JPRC under the Justices of the Peace Act is twofold:
- to review proposed appointments to the justice of the peace bench and
- to investigate and review complaints made against justices of the peace.
The Justices of the Peace Review Council received 52 complaints in 2004/2005, as well as carrying forward 55 complaint files from previous years. Of these 107 complaint files, 49 were closed before the March 31st, 2005 year-end, 48 of them because no misconduct was found. One complaint file proceeded to a section 11 investigative hearing before the JPRC, at the end of which, the complaint was dismissed.
In addition to dealing with complaints, the Justices of the Peace Review Council held interviews and made recommendations regarding the appointment of justices of the peace in Ontario. During its fifteenth year (April 1, 2004 – March 31, 2005), the Review Council interviewed 34 potential candidates for the position of full-time justice of the peace.
In the calendar year 2005, the Court received 17 full-time appointments and two internal judicial progressions (“Internal progression” is a process whereby existing justices of the peace move from part-time or non-presiding designations to a full-time presiding designation.).
If the changes proposed in Bill 14, the Access to Justice Act, 2005, (see below) are enacted, the JPRC in future will deal only with complaints and not with justice of the peace appointments. In addition, the structure, powers and functioning of the Council will be significantly modified.
Justices of the Peace Review Council
JUSTICES OF THE PEACE
Projet de loi 14, la Loi de 2005 sur l’accès à la justice,
Quand j’ai pris la parole pour la première fois en tant que juge en chef en 2000 lors de la cérémonie de la rentrée des tribunaux, j’avais mentionné que j’étais en train de discuter des changements nécessaires au système de juges de paix avec le procureur général de l’époque. L’année dernière, j’ai parlé de discussions approfondies. À l’automne 2005, le procureur général a déposé le projet de loi 14, la Loi de 2005 sur l’accès à la justice, portant sur plusieurs éléments du secteur juridique. Pour ce qui est des juges de paix, les réformes proposées apporteraient de profonds changements au processus de nomination par la création d’un comité indépendant, appelé le Comité consultatif sur la nomination des juges de paix. Les postulants au poste de juge de paix devraient posséder certaines qualités définies par la loi avant d’être considérés. Le projet de loi prévoirait aussi une désignation unique de juge de paix président pour tous les juges de paix et un nouveau processus disciplinaire, mieux structuré et plus moderne. Finalement, le projet de loi créerait le nouveau statut de juge de paix mandaté sur une base journalière (ou juge de paix per diem) ce qui faciliterait l’assignation d’appoint dans des circonstances particulières et pourrait aider la Cour à mieux assumer ses responsabilités.
La Cour suivra attentivement le cheminement législatif de ce projet de loi.
Justice of the Peace Complement
As I indicated last year, the Ontario Court of Justice continues to experience great difficulty in meeting demands for justices of the peace services, particularly in the area of municipally-administered provincial offences courts. One potential reason for this is a lack of agreement on the justice of the peace complement of the Court. Under the leadership of Associate Chief Justice Don Ebbs, the Court has developed a Complement Management Plan which provides a detailed analysis of service requirements at all criminal and provincial offence court locations across the province, and compares this to available judicial resources. In response to the Court’s request for consultation and feedback on the initial draft of the Plan, the Court Services Division of the Ministry of the Attorney General is now proceeding with a parallel analysis of justice of the peace resource requirements. To this end, the Ministry has retained consultants associated with the American National Center for State Courts to evaluate and compare available justice of the peace resources against service requirements.
While this process will take some time, it is imperative that there continue to be increases in the justice of the peace complement to match increased needs. Between 1997 and 2003, the justice of the peace effective complement increased by 24%. However, over the same time period, courtroom bail hours increased by 73%, charges received in provincial offences courts increased by 24% and the total number of events heard by justices of the peace more than doubled.
The Court has agreed with the Ministry to continue for the time being with the interim appointment process put in place in 2004. As indicated earlier in these remarks, there were 17 justice of the peace appointments and two internal progressions in 2005. Over the next five years, as many as 82 justices of the peace will be in a position to retire voluntarily (at age 65) and a further 37 will reach mandatory retirement age. These 119 justices of the peace, all of whom must retire within the next ten years, represent 40% of the current justice of the peace complement. Since the justice of the peace bench is a lay bench, new appointees must receive extensive educational training and orientation before they can assume judicial duties. This training is delivered by experienced justices of the peace who must be diverted from other assignments for this purpose. New appointees are also mentored for a period of three to six months before being assigned to full-time duties. Accordingly, the Court requires not only additional complement, but also timely appointments when vacancies occur in order to prevent the interruption of service.
The Court continues to work with officials of the Ministry of the Attorney General on these issues.
Electronic Warrant (E-Warrant) System
In my Opening of Courts address last year, I noted that the Tele-warrant Review Committee (which includes representatives from the Ontario Court of Justice, the Court Services Division, Corrections and various policing agencies, including the Association of Chiefs of Police) had recommended the development of a new electronic system to process warrant applications. Funding has now been made available for a pilot project to develop a test system, initially designed to process search warrant applications pursuant to s, 487 of the Criminal Code, and s. 11 of the Controlled Drug and Substances Act. The system should be operational in the spring of 2006, with the Committee overseeing management of the pilot project. The ultimate goal is to replace the existing tele-warrant system with a secure, electronic warrant (e-warrant) system.
ONTARIO JUSTICE EDUCATION NETWORK (OJEN)/RÉSEAU ONTARIEN D’ÉDUCATION JURIDIQUE (ROÉJ)
L’année 2005 a vu une recrudescence de l’éducation juridique au sein de la population franco-ontarienne grâce aux activités de sensibilisation du Réseau ontarien d’éducation juridique. De concert avec l’Association des juristes d’expression française de l’Ontario (l’AJEFO), des élèves du secondaire, dans un certain nombre de collectivités, ont participé à des procès fictifs tenus en français. Cette initiative prendra de l’ampleur cette année et d’autres localités offriront aux élèves francophones la possibilité de participer à ces activités et d’utiliser les ressources en français du système de justice de l’Ontario.
Le ROEJ continue à élaborer et à distribuer des ressources destinées aux enseignants de Civisme et de Droit. La série de plans de leçon « Valeurs du système de justice », adaptée au nouveau curriculum de l’Ontario, a été distribuée en français et en anglais à travers la province. La vidéo du Grand Débat, tenu en avril dernier, a été distribuée sous la forme d’un DVD accompagné d’un plan de leçon, pour être utilisée dans la salle de classe. La demande de cette ressource a de loin dépassé l’offre et il est prévu d’élaborer d’autres ressources audio-visuelles. Le ROEJ est également décidé à répondre aux demandes de ressources et de développement professionnel à l’attention des enseignants d’immersion française et des enseignants de Civisme et de Droit dans les conseils d’éducation en langue française. Il est prévu de créer, pour cet été, un institut de droit d’été en langue française qui offrira à ces enseignants des possibilités de rencontrer des bénévoles du secteur de la justice et de compléter les ressources qu’ils utilisent dans la salle de classe.
Le progrès considérable réalisé par le ROEJ jusqu’à date est dû en majeure partie à sa directrice exécutive fondatrice, Taivi Lobu, qui s’est dévouée au Réseau et à ses projets depuis la création du ROEJ. Tout en souhaitant la bienvenue à la nouvelle directrice, Sarah McCoubrey, je tiens à remercier Taivi Lobu et à souligner son immense contribution à la promotion et à la réalisation des objectifs du ROEJ.
ANNUAL REPORT
This year, I am pleased to announce that the Ontario Court of Justice will be publishing its first Annual Report. Along with information dealing with the period from April 1, 2004 to March 31, 2005, the report will contain a comprehensive description of the Court’s evolution, its jurisdiction, structure and other items of interest to the public. It is expected that the Annual Report will be ready for publication in the early spring of this year.
TRANSITION
2005 has been yet another year of transition for the Ontario Court of Justice. As I indicated last year in my remarks on this occasion, the six-year term of office of Justice David Wake as Associate Chief Justice ended in May of 2005. I am pleased, together with the whole of the Court, to welcome Justice Annemarie Bonkalo as our new Associate Chief Justice. Justice Bonkalo, who had been the Regional Senior Justice for Toronto, is widely known for her abilities and has been warmly received by the members of the Court. She has been replaced in Toronto by Regional Senior Justice Robert Bigelow. In the Northeast Region, Regional Senior Justice Richard Humphrey has replaced Regional Senior Justice Normand Glaude, following Justice Glaude’s appointment as Commissioner of the Cornwall Inquiry. In the East Region, Regional Senior Justice Peter Griffiths has replaced Regional Senior Justice Bruce MacPhee. I would like to take this opportunity to thank each of the outgoing Regional Senior Justices for their service and contributions to the Court and to welcome their successors in office.
Also in 2005, Regional Senior Justices of the Peace Ralph Faulkner (Toronto Region) and Norman Ross (Northeast Region) left their respective offices to be replaced by Regional Senior Justices of the Peace Frank Devine and Jane Forth.
2005 also saw the departure of Jan Mackintosh as Executive Coordinator in the Office of the Chief Justice. Ms Mackintosh worked tirelessly over the past five years in a difficult and challenging roll and made significant contributions both to the Court and to the Office of the Chief Justice. I welcome Lori Newton as Executive Coordinator and look forward very much to working with her as she undertakes her new challenges in that role.
Finally, in dealing with transitions, I would like briefly to honour the memory of two judges whom the Court lost in 2005, Justices Lynn King and Ivan Fernandes. Both Justice King and Justice Fernandes presided in Toronto and their loss has been keenly felt by all of those who had the privilege of working with them.
CONCLUSION
Since becoming Chief Justice almost seven years ago, I have come to the conclusion that constant change has become the new status quo. Adaptation in a constantly changing world requires ongoing assistance, mutual support and cooperation in a number of areas. That support has been provided unstintingly by the judges and justices of the peace of the Court, by our own staff and that of the Court Services Division who work, often in difficult circumstances, to ensure the effective delivery of justice services. I am continually impressed by the commitment and abilities of everyone within the Ministry of the Attorney General with whom I have been privileged to work: the Deputy Minister, the Assistant Deputies and Ministry officials, Regional Directors, local Managers and court staff. Within our Court, my work over the past year has been made immeasurably easier by the help of Associate Chief Justices Ebbs, Bonkalo and Wake, the Regional Senior Judges and Justices of the Peace, by Local Administrative Judges and Justices of the Peace and by our professional and support staff. I would like to take this opportunity to thank all of them.
Si, de fait, le changement est devenu le nouveau statu quo, il y aura au cours des années à venir beaucoup d’autres défis à relever. Avec l’appui de tant de gens de bonne volonté, d’expérience et de compétence, je ne peux pas m’empêcher d’envisager l’année 2006 avec optimisme et enthousiasme. Je conclus en vous souhaitant à tous une Bonne et Heureuse Année au bénéfice des Ontariens que nous desservons.