Elaborate Rules Means Justice System Is Expensive and Inaccessible

At the Opening of the Courts this week in Ontario, Justice Strathy, the new Chief Justice for the Province, gave a speech which highlighted how the court system is largely inaccessible to the majority of the public, largely due to the cost, complexity and time involved.

He made particular reference to his experience in the Ontario courts as a need for reform:

Having been a lawyer and a judge in this province for over 40 years, it strikes me that we have built a legal system that has become increasingly burdened by its own procedures, reaching a point that we have begun to impede the very justice we are striving to protect. With the best of intentions we have designed elaborate rules and practices, engineered to ensure fairness and achieve just results. But perfection can be the enemy of the good, and our justice system has become so cumbersome and expensive that it is inaccessible to many of our own citizens.

In my view, we must ask every court, every court office, every person responsible for the administration of justice to consider how their practices and procedures can be simplified, streamlined and made more user-friendly. And we must also foster a culture where these changes can be implemented. I know from my conversations with the other Chief Justices, with the Attorney General and the Deputy Attorney General that we all share these objectives. As Chief Justice of Ontario I will personally commit to review the Court of Appeal’s practices with a view to meeting these goals.

Chief Justice Strathy made reference to the infrastructure investments planned by the Ontario government, which are expected to improve court services.

The special interfaith ceremony, which has historically been held in the morning of the Opening of the Courts, was cancelled this year. The ceremony has been the focus of protests against the costs and delays of the court system, in particular in the area of family law.

Chief Justice Heather Smith of the Ontario Superior Court of Justice listed several initiatives by the court to improve family law:

  • Family Rules initiatives to streamline family proceedings
  • raising the profile of family law among future lawyers
  • expanding the family law curricula in law schools
  • supporting the Walsh Family Law Moot and a negotiation moot for 2015

Chief Justice Smith also addressed the most criticized delays in the civil system:

Last year’s unacceptable wait times for civil long motions and long trials are now “history”!

The proof is in the Toronto numbers: a year ago, the delay to a short civil motion was more than four months and the delay to a long civil motion was approximately 11 months. Justice Morawetz advises, and I am grateful and delighted to report, that both short and long civil motions are now available in a few short weeks. A year ago, the delay to certain long civil trials, such as a complex class action or commercial trial, was up to 22 months. Today, any long civil trial is available in six months or less.

When the Bar organizations spoke last year, we listened. RSJ Morawetz sought the Bar’s collaboration and the sound advice of his GTA judicial colleagues in tackling the core problems. New approaches were devised. New practice directions were developed to eliminate counterproductive booking practices and other inefficient procedures. Our real challenge for the coming year is to sustain these exceptional results – a goal that will be virtually impossible without a full judicial complement.

Despite these comments, many litigators in Toronto still indicate that motion and trial dates are difficult to obtain. The new decision on summary judgement motions may provide additional relief, but it is still being interpreted by the courts.

The practice directions referred here, and the changes implemented by the Superior Court, are simply not enough to address the inaccessibility of the courts to the general public, and further reforms will be required. Paola Lorrigio of The Globe canvassed some of the reactions to the Opening of the Courts:

Strathy’s message was hailed by the Ontario Bar Association, which represents the province’s lawyers and judges. The association has been working with the province to improve access to the justice system, board member Doug Downey said.

“Some procedures are put in place to solve another problem but they create a problem of their own,” said Downey, a practising lawyer in Barrie, Ont.

“If the chief justice is interested, and he certainly sounds like he is, in reviewing the system… sort of at a higher level, we may be able to rationalize some of those procedures,” he said.

Particular attention was given by Chief Justice Smith about the shooting in the Brampton courthouse on March 28, 2014:

The security of the public, staff, counsel and judges at our courthouses has weighed on everyone’s mind in the aftermath of the Brampton shooting. Our court’s Local Administrative Judges have worked to establish local court security committees at all 50 Superior Court locations across the province. Those committees are now established, have held meetings, and are developing the local court security plans required by the Police Services Act.

Like many court facilities throughout the province, Toronto has its own unique set of security issues. Chief of Police Bill Blair responded promptly to our concerns and some new security features are already in place in the Superior Court’s “Osgoode Precinct”. Others will be part of a pending holistic review.

Without doubt, we still have work to do! I assure you I will not compromise in meeting our shared objective to have timely and appropriate responses to any courthouse security issue.

Comments

  1. David Collier-Brown

    Orthogonal to these efforts is the problem of the complexity of interaction between statute and case law.

    In the nerd business we are constantly creating large numbers of systems approaching this complexity, and then having to understand them and change them. Previously we would hit a complexity limit, and the programmers’ heads would explode when they tried, so there were both theoretical and practical limits on fixing them.

    In the last five years or so, however, we’ve actually been able to succeed in the understanding/changing. We now know how to “refactor” patterns and anti-patterns, for a subset of the problem space. In other words, we can make changes while preserving correctness.

    It’s not mature enough for broad use, but it is good enough for an interested legislature or firm to consider experimenting with…

  2. Justices at gunpoint: Chief Justice Heather Smith, one of their recent decisions could mean that the Ontario Court of Appeal is not going to protect judges from bad people who come to courthouses with guns, if such bad people want a stay of their convictions by reason of very bad police conduct: R. v. Singh (Ont. C.A., December 12, 2013). The Court stayed a robbery conviction because the police systematically beat up the appellant (“good cop-bad cop” strategy, described at paras. 10, 15, 23, & 27). The robbery involved making the victim believe that his life was being threatened with a gun so that $350,000 of copper piping could be stolen by employees. The propriety of the conviction was not in question; the fairness of the trial was not prejudiced; all statements of the appellant were exculpatory; and, there was sufficient other evidence for the jury to convict (paras. 6 & 33). Because the appellant would not testify in the later investigation of the police, there appeared to be no other way of taking the fruits of their crime away from the police (paras 45-46).
    But the result warns us that if bad people with guns come to courthouses, they will themselves be able to decide by their own actions: (1) when to have their own convictions nullified (stayed) by refusing to cooperate with the investigation of alleged crimes committed by the police; (2) if they will or won’t take the risks of being witnesses against their police assailants; (3) when the decision of a jury on the facts will be nullified; and, (4) when the law won’t be available to protect potential victims, including judges in courthouses, from bad guys and girls with guns. Therefore I agree with the trial judge (Justice Julie A. Thorburn) that reducing the sentence was a far better solution than nullifying a conviction for such a very serious criminal offence (at para. 8). So Chief Justice Smith, please ask Justices of Appeal, R.A. Blair (with Doherty & Watt JJ.A. concurring), if they would have granted a stay of the appellant’s conviction if he had rushed into your court or office, in a manner that made you believe that your life was being threatened with a gun. Maybe it all depends upon whose justice is being judged, such that you might provide the community with better protection of the rule of law than Justice Thorburn tried to provide. Or is this the appropriate conclusion, the administration of justice is not brought into disrepute if the lives of judges when at work, are given greater protection by the rule of law, than are the lives of employees of the owners of scrap metal when at work? – Ken Chasse (“Chase”), LSUC (1966) & LSBC (1978).

  3. Complexity is inevitable in our legal system. What we lack is: accountability for abuse of the system, measures to address Inadequate Representation by bad lawyers, prohibiting Expert Witnesses with a history of negative court decisions, abuse of qualified privilege to falsify affidavits, light treatment of perjury, informative seminars for parents entering the legal system as self reps, poor service by FLIC offices, CAS abuses given light treatment by the courts and a system that overall refuses to live up to the high standards imposed only on ordinary citizens who don’t have a special interest group like LSUC (protecting the lawyers from the public but not the public from the lawyers). Learn more at Canadacourtwatch (dot) ORG

  4. It’s not a justice system, it’s just a system.

    And a huge profitable one at that…

    ………………

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