Opening of the Courts

OPENING OF COURTS REMARKS
THE HONOURABLE GEOFFREY B. MORAWETZ,
CHIEF JUSTICE OF THE ONTARIO SUPERIOR COURT OF JUSTICE
SEPTEMBER 22, 2020

Greetings: Chief Justices, Fellow Judges, Masters, Deputy Judges and Justices of the Peace, Ms. Anne Turley on behalf of the Federal Minister of Justice, Attorney General, Doug Downey, Madam Treasurer, Representatives of Ontario’s Bar Associations, Representatives of Ontario’s police forces, And members of the media.

Introduction

While I was appointed Chief Justice on July 1 last year, this is my first address at the Opening of Courts ceremony.   Associate Chief Justice Frank Marrocco kindly delivered remarks on behalf of the Ontario Superior Court of Justice in 2019.

I am very pleased to be here to deliver my first address at this important event. There is a lot to discuss.

Changes to the Executive of the Court

Before I begin, I would like to speak about the many changes to the Council of Regional Senior Judges, which functions as the executive of the Court.

Last year, Chief Justice Heather Smith retired from the Court, after a distinguished 36 years as a judge and 16 as Chief Justice. She left an impressive legacy, not only as the first female Chief Justice, but one who was steadfast in her commitment to make the court responsive, timely and efficient.

Over the past year, the Court also saw the appointment of a new Senior Family Judge and 3 new Regional Senior Judges:

  • Senior Family Justice Suzanne Stevenson filled Justice George Czutrin’s vacancy as he stepped down as SFJ.
  • Regional Senior Justice Leonard Ricchetti filled the vacancy in the Central West region when Justice Peter Daley stepped down as RSJ;
  • Regional Senior Justice Calum MacLeod filled the vacancy in the East region when Justice James McNamara stepped down as RSJ;
    And
  • Regional Senior Justice Stephen Firestone was appointed RSJ in the Toronto region, following my appointment as Chief Justice.

Each were appointed before the pandemic hit, and each moved seamlessly into their new roles, providing exceptional leadership at a time of great challenge. I thank each of them for their dedication over the past year, as well as each of their predecessors for their years of contributions to the Council of Regional Senior Judges.

And there will be a further change this year – Associate Chief Justice Frank Marrocco must retire from the Court in November. The Associate Chief Justice has been a trusted advisor and friend for many years. He has earned tremendous respect among his colleagues, always providing practical and wise counsel. Prior to his appointment to the Court, he was a leader in the bar, having served as Treasurer of the Law Society. His reputation is impeccable and his judgment is exceptional. And for this reason, it is no surprise that the provincial government has asked him to lead an inquiry into the effects of COVID-19 in long-term care homes. Frank, we send you our very best for an incredibly well-deserved retirement from the Court.

I am also grateful for the diligent efforts of the federal Minister of Justice, the Honourable David Lametti, in filling vacancies on this Court. In 2020, 19 exceptional judges have been appointed, and as of today, there are only 9 vacancies. I thank the Minister and his judicial affairs advisor, François Giroux, for all of their efforts.

The COVID-19 Pandemic and the Court’s response

In January, our Court began discussions with the Ministry on how we would manage through a public health emergency due to the coronavirus. Like so many institutions, we faced much uncertainty and many challenges. We remained entirely paper based and lacked the technology that would enable us to weather a pandemic.

The week of March 9, with reports of the coronavirus being spread in communities across Canada, my office began to plan for the suspension of in-court operations. I was keenly aware that this would be unprecedented.

On March 15, 2020, with the unanimous support of RSJ Council and supported by public health advice, I issued a Notice to the Profession suspending the Court’s regular in-person operations but providing for hearings of urgent matters by teleconference. As Chief Justice, I was compelled to do my part to protect the health and safety of all who work in or must attend a courthouse.

Immediately thereafter, a series of events unfolded.

I conducted daily emergency management meetings with the Court’s COVID-19 Emergency Response Team: Associate Chief Justice Marrocco, Justice Michael Brown, Mohan Sharma, Norine Nathanson, Josh Patlik and Jennifer Knight. The Council of Regional Senior Judges met frequently and worked tirelessly to advise me on how best to continue the court’s operations in these unprecedented times, keeping in mind regional pressures. I was also in regular contact with the Attorney General and my fellow Chief Justices. Together we pursued every conceivable way to enable continued access to the Court.

Our Court’s response to the pandemic was supported by bar associations and the Attorney General. We convened Working Groups for Family, Civil, Criminal and Small Claims Court matters. These Working Groups included not only judges but representatives from the Ministry of the Attorney General and other Ministries, bar associations, legal aid and other organizations. I wish to acknowledge the commitment and leadership of the judiciary and lawyers in my office for making these Working Groups a success. I also wish to thank the individual lawyers and the Ministry and organization representatives who have served on these Working Groups. Because of your dedication and hard work, we have accomplished so much: new practices and processes, new technology and a new flexible approach to the administration of justice. We came together as never before to respond to this crisis.

In particular, I wish to thank the Ontario Bar Association for offering Zoom videoconference lines to the Court within a week of the suspension of the Court’s in-person operations. The OBA and The Advocates’ Society also struck an e-hearings task force to develop recommendations on technology platforms that would enable the Court to receive material electronically. The Criminal Lawyers’ Association’s work on our Working Group, together with the Crown, paved the way for the use of Zoom in criminal matters.

Ultimately, the Ministry of the Attorney General secured Zoom for the Court. By August, the Ministry had entered into a contract with Thomson Reuters CaseLines for a sophisticated tool that will shortly enable the Court to receive materials electronically for all scheduled hearings.

At no time was the Court ever closed. Like other branches of government, the Court has a constitutional responsibility to ensure it continues to function and serve the public. This is a commitment to which I remain resolute.

Since March, the Court’s trial coordinators have been the safety net upon which access to justice has remained available. Trial coordinators became the central filing office, scheduling office, and primary means of contact for the media, litigants and the bar. Many have worked weekends, late into the evening, and have given up vacation time while also managing family responsibilities at home. We owe them a massive debt of gratitude.

Similarly, many of our judicial officers have also worked tirelessly – particularly our Regional Senior Judges, Local Administrative Judges, and Family Court judges. Judges and masters have voluntarily given up vacation weeks, some have delayed retirement, and almost all have adapted to a new virtual reality for many court appearances.

Through these combined efforts, I am very proud to report that the Ontario Superior Court of Justice has now heard just over 50,000 virtual hearings since March, 2020. To have achieved this large-scale transformation would not have been possible previously. As is said often these days, “with every crisis comes an opportunity.”

I am immensely grateful for the strong leadership of the Attorney General, who has given the Court significant tools – with more to come – that will enable the court to better serve the public in a modern, accessible and efficient manner. There will however, be no replacement for live, in-person hearings for many court appearances.

Guided by public health advice, the Ministry’s Recovery Secretariat has worked diligently to implement health and safety precautions in about half of all Superior Court courtrooms in the province. This has enabled in-court appearances to resume at many centres. On behalf of the Court, I wish to express my sincere appreciation to the Recovery Secretariat and Ministry staff for all of their hard work.

There is much more work to do. But I am buoyed by the significant commitment and achievements of so many these past six months.

Access to Justice for the most vulnerable

While superhuman efforts have been engaged to ensure continued access to the Court, we also recognize that the pandemic created new obstacles. For many litigants, particularly victims of domestic violence or other vulnerable family litigants, there were few places to go for assistance. Telephone and video hearings were not an effective solution if a litigant had limited or no telephone or internet access.

Alive to this concern, my office sought assistance from the private sector. We secured corporate donations of cell phones and SIM cards that were distributed jointly with the Ontario Court of Justice to children’s aid societies, the Ontario Association of Interval and Transition Houses, and the Barbra Schlifer Legal Clinic.

With great support from the family bar, counsel in my office also worked with the Law Society of Ontario to establish a hotline for family litigants in need of legal assistance during the pandemic. We also developed and posted on our website Information for Self-Represented Litigants Regarding Family Court Operations.

Of course, more needs to be done. As we continue to embark on technology to make the Court more accessible and responsive, we must keep in mind that increased reliance upon technology can make the Courts less accessible for some.

The Open Court Principle

With greater use of audio and video hearings, the media has raised legitimate concerns about public access to court proceedings. The open court principle guarantees that court hearings shall be open to the public except in the most exceptional circumstances. Without openness and transparency, the legitimacy of the Court as the third branch of government is at risk.

Through the pandemic, we have invited members of the public and media to contact the local courthouse to request information on how they may hear or observe a virtual hearing. In certain cases with great public interest, the Court has also broadcast hearings through a private YouTube channel, like this one today. In at least one case, there were in excess of 20,000 viewers.

But the Court must also be mindful of the unanticipated impacts of new technologies. For example, with sensitive testimony, broad publication may inhibit effective testimony and, for some, it may inhibit access to the justice system in the first place. A balance must be struck.

In the coming months, my office will be working on guidelines to assist all judges and masters in maintaining the open court principle without compromising the effective administration of justice. We will consult with media organizations to ensure solutions are as responsive as possible.

Model of Courts Administration

At last year’s Opening of Court ceremony, Associate Chief Justice Marrocco sounded the call for a more independent and judicially led model of courts administration. He cited the fact that the Courts are an independent, separate and equal branch of government; the Courts are not a Division of the Ministry of the Attorney General. In his words,

“…Our Court must insist upon a reform of our relationship with the executive branch which results in the Court achieving more control over the resources which the government chooses to make available to us.”

I stand by and fully endorse the Associate Chief Justice’s words. COVID-19 has shone a bright light on the frailties of the current model of courts administration, the absence of sufficient technology, and the overly bureaucratic nature of government that inhibits the effective operation of the Courts.

There is a strong case for transformative change to Ontario’s model of courts administration. Since 1973, five out of six reports have recommended abandoning the current model of executive control. In jurisdictions across Canada, such as the Supreme Court of Canada, the federal courts, and the British Columbia courts, models are in place that place greater control with the judiciary over certain aspects of courts administration, including funding.

This reform is necessary to ensure the Court remains independent of government and has the resources it needs to function effectively. This is for the benefit of the public, not its judicial officers.

Mr. Attorney, understandably, the COVID-19 pandemic has sidelined these discussions. In recent months, we have benefited from direct assistance and intervention from your office for which I remain grateful. However, the effective operation of the Court cannot depend on whoever sits in your chair. This issue remains a top priority for the Court. I am eager to have further discussions with you so that meaningful, transformative and permanent change can occur, in keeping with the constitutional and institutional independence of the Court, and which will extend beyond your term and mine.

Equity, Diversity and Inclusion

This past year, systemic racism has been the root of much social unrest in Canada and around the world. Calls for social and institutional change have emerged.

On June 18, 2020, Chief Justice Richard Wagner of the Supreme Court of Canada said the following:

“In recent weeks, we have all seen people around the world raise their voices against racial discrimination and racial violence. Confronting injustice, wherever it shows itself, is a good and necessary thing to do.

In Canada, Section 15 of the Charter guarantees everyone equal protection and equal benefit of the law without discrimination, including discrimination based on race. Unfortunately, as the Supreme Court has noted, that guarantee hasn’t always been fulfilled.

Just over a year ago, in Le, the Court cited abundant research showing the pernicious effects racial profiling have had on racialized communities in Canada. The Court noted that racialized communities have disproportionate levels of contact with police and the justice system, and they are more likely to have their rights violated or to be injured or killed in interactions with police. These are hard facts, but they are facts.

We also know that the Indigenous community has long suffered stereotyping, bias, and discrimination. This has been well documented by the Truth and Reconciliation Commission.”

To protect the impartiality of the court, judges must exercise caution in engaging in extra-curricular activities and when speaking publicly. This does not mean that judges are separate from the society in which they live. The contrary is true – they must be an integral part of it. As judicial officials, we cannot do our jobs effectively if we are detached from what is happening in the world around us. Indeed, the Ethical Principles for Judges requires that judges strive to be aware of differences and understand differences arising from race, sexual orientation, gender, disability and other grounds. I want you to know that we are keenly aware of what is happening, and we are taking responsive action.

In recent years, our Court has used our educational platforms to better inform our judiciary on equity issues. Education has been offered to all Superior Court judges on:

  • the Truth and Reconciliation Commission’s Report and it’s Calls to Action;
  • a course on sexual assault law, which is mandatory for all new judges and available to all judges;
  • LGBTQ issues were the focus of a 3-day judicial education conference;
  • First Nations, Inuit and Métis issues in the context of child protection cases was also the subject of specific judicial education,
  • our 2020 Spring judicial conference was to focus on Cultural Competence and Unconscious Bias – a topic we will return to at our next judicial conference.

These are modest steps but not insignificant. I believe we have a continuing obligation to be alive to inequities and disparities in our society, which I will continue to pursue on the Court’s Education Committee.

In addition, our Court decided in March to establish an Equity, Diversity and Inclusion (EDI) Committee to advise me and RSJ Council on EDI issues, to serve as a resource for SCJ judiciary, and promote awareness of EDI issues within the Court.

The pandemic has delayed the work of this Committee, but I look forward to working with this group and to the development of initiatives that are responsive to the issues facing a modern Court.

Concluding Remarks

In 2016, the Superior Court of Justice adopted a vision statement: Independent, Responsive Justice, Open to All.

If this past year has shown anything, it is that the Court’s independence cannot be constrained by the bureaucratic nature of government, that we have made and continue to make great strides to make the courts accessible, and that the court has never and will never close. At every opportunity, we will defend the institutional independence of the Court. We will also find every way to promote judicial education that ensures judges are alive to the lived experience of those who appear before them. This is exactly what responsive justice demands.

I offer my commitment to the profession and the public that we will continue to pursue all of these areas, so that the Court’s vision of Independence, Responsive Justice that is Open to All, will be realized.

Thank you. Merci