Remarks of the Honourable Michael H. Tulloch Chief Justice of Ontario
Opening of Courts of Ontario. September 28, 2023.
It is an honour to preside over this special sitting of Ontario’s three courts. While I have enjoyed attending these ceremonies for many years, this is the first time I have done so in my capacity as Chief Justice. I am humbled to have this opportunity, and I feel privileged to be able to do so with my colleagues, the Honourable Geoffrey Morawetz and the Honourable Sharon Nicklas.
At the outset, I want to acknowledge my colleague Associate Chief Justice Michal Fairburn, who fulfilled the role of acting Chief Justice for the Court of Appeal in addition to her role as Associate Chief Justice for four months, and continues to provide wise and dedicated leadership for the Court. I would also like to acknowledge all my judicial colleagues from the Court of Appeal, the Superior Court of Justice, and the Ontario Court of Justice. You all have shaped the influence and leadership of this Court, and your unwavering dedication and zeal is deeply valued.
I also want to specifically acknowledge my predecessor, Former Chief Justice George Strathy. Unfortunately, another commitment has prevented the former Chief Justice from attending today, but I would like to personally thank him for his tremendous leadership, collegiality, and friendship. He has left an indelible legacy on this Court and the profession at large.
I would also like to acknowledge former Chief Justice Lise Maisonneuve of the Ontario Court of Justice. Lise, thank you for your eight years of service as Chief Justice and for the warmth and collegiality you showed to me after my appointment.
I must highlight two of my fellow judges on the Court of Appeal. Our beloved colleagues, Alexandra Hoy and Gladys Pardu, are retiring this week. Justice Hoy retires after devoting twenty-two years as a judge, and twelve years on the Court of Appeal, including seven years as Associate Chief Justice of Ontario. Justice Pardu retires after serving a remarkable thirty-two years as a judge, and ten years on the Court of Appeal. These two judges have been cherished colleagues, mentors, and leaders at our Court for many years. I know I speak for all of my colleagues when I say we will miss the wisdom, compassion, experience, and good spirits these judges brought to the bench. We wish you the very best in the next stages of your career.
While Justices Hoy and Pardu will be dearly missed, our Court is happy to welcome Justice Patrick Monahan to our Court, appointed in May. Justice Monahan has a stellar reputation and brings with him six years of experience at the Superior Court of Justice. We are delighted to have you as a colleague.
The Opening of Courts is a unique and special occasion, and it is one that I believe is crucial for the health of our judicial system. The Opening of Courts is a singular opportunity for the entire legal community to focus our attention on our common objectives. Usually when we attend a courtroom like this, we are engaged in an adversarial process, each with our unique and constitutionally separated roles. But underlying this we share a common objective. All of us — whether we are judges, members of the bar, leaders of the executive branch of government, court staff, law enforcement officers, or other individuals who support our justice system — have pledged to ensure that justice is administered in a fair, efficient, and effective manner.
The Opening of Courts, therefore, serves as an annual opportunity to pause and take stock of our achievements and challenges; and it provides an occasion to review and renew our objectives for the future. This deep and considered reflection on the direction of our legal system is important year over year, but especially so in the face of the challenges we face today.
People everywhere are challenging established institutions, questioning their relevancy and their ability to serve society’s needs and interests. The public will no longer blindly accept the explanation that there can be no systemic change because this is the way that we have always done things. They are questioning whether our entrenched wisdom and established practices continue to be in our collective best interests. They demand accountability from all those in public roles. They are justified in these demands.
Still, for our legal system, these are daunting challenges. No less than our institutional relevance and legitimacy are at stake, and this strikes at the very core of justice in Canadian society. Indeed, when I reflect on the importance of the law, I can do no better than to quote from Abraham Lincoln, who said:
Let reverence for the laws, be breathed by every … mother, to the lisping babe, that prattles on her lap — let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs; — let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.
To me, these are not just words. They embody and capture the importance of the law and our legal institutions, such as the courts, to us as a society, and more importantly, to each of us as individual Canadians. As such, we cannot risk the public’s loss of faith in our legal system.
Thus, we must not shirk from these challenges; we must embrace them. Ironically, the way we can meet the challenges of tomorrow is to rededicate ourselves to two traditional values that underlay our legal system: duty and responsibility.
As members of the justice system, we have a collective duty and responsibility to ensure that our justice system is relevant and meaningful, now and in the future. But how do we meet that challenge? I say to you today that we must work together and commit ourselves to three guiding principles. Our justice system must be responsive, accessible, and reflective of our society.
When it comes to being responsive, we must never lose sight of the fact that we serve the people of Ontario. We should never lose sight of the fact that each case that comes before our courts involve real people, and regardless of who they are, to each person involved in the justice system, their case is more likely than not the most important thing that is happening in their lives at that particular point in time.
The role of the courts in our society is significant. Ontarians have a fundamental right to a fair, efficient, and effective justice system. In service of this right, the courts are the guardians of justice, responsible for upholding the rule of law and ensuring fair and impartial treatment for all. However, the challenges we face today are unparalleled: rapid and momentous advancements in technology, changes in social norms, and evolving expectations of justice are only a few of the pressing issues we face. In an era where our society is constantly evolving, it is essential for the courts and the justice system to be dynamic and agile.
Our technological infrastructure and ingenuity will help anchor our responsiveness. We as a society are privileged to live in a time of great technological progress and change. We have been conditioned to accept rapid and continuous change as one of the few constants in our modern world. This can be leveraged to the advantage of our legal system. Embracing technological advancements can help streamline court processes, reduce delays, and ensure that justice is delivered in a timely manner. Our success in transitioning the courts to virtual hearings during the pandemic is a testament to our technological capacities. But we must not stop there.
I have travelled to rural, northern, and Indigenous communities in Canada where I felt viscerally how accessing a court in person often proves difficult for those residents. Strengthening our courts’ ability to securely operate digitally is crucial to ensuring that these communities have the same access to justice as those in metropolitan cities. In my view, this is a natural progression of the courts’ ongoing modernization projects, such as the launch of the Court of Appeal’s new electronic case management system last year.
The second guiding principle, access to justice, goes hand-in-hand with responsiveness. When we understand the needs of Ontarians within the legal system, we can better dismantle existing barriers to accessing the courts. As a public institution, our court system must be accessible to everyone in our society. The courts belong to the people, and they must be accessible to the people. We cannot allow courts to be perceived as being reserved exclusively for an elite few.
When the people of Ontario cannot afford to defend themselves from criminal charges, when victims to serious crimes see criminal charges thrown out because of unacceptable delays, when they cannot determine civil suits in a timely way in an impartial arena, we fail in our duty to protect the rule of law. Let me be clear on that. It is not just the courts and governments that are at fault. We are all at fault.
Accessibility takes many forms, but I’d like to offer what I think are three illuminating examples. First, we must strive to make our procedures more understandable for the people affected by them. This includes increasing plain language guides and resources for the public. Care must be taken to ensure materials and resources are tailored to be relevant and understandable to the diverse communities we serve, including members of Indigenous communities. Expanded use of plain and inclusive language is critical to overcoming the anxiety members of the public experience in the judicial system, and it would save much judicial and staff time, which is now spent unravelling snarled cases and redirecting self-represented peoples.
Second, we need to promote appropriate active adjudication in cases with self-represented parties. Our adversarial system assumes that both sides will be adequately represented, but that assumption often fails when a self-represented litigant appears. Active adjudication can help fill gaps so that justice may be done. Let me explain that concept. Active adjudication involves active listening and participation, where judges ask appropriate questions to assist the self-represented litigant to explain their case. This can assist judges to obtain the evidence they need to properly decide cases. Judges must be trained in appropriate active adjudication: it involves a careful, measured touch, and must draw on cultural competence to adequately serve the public. This is a responsibility close to my heart, as I have personally seen the benefits of active adjudication in my own work as a judge and while conducting my two independent public reviews.
Third, access to justice engages a consideration of how we interact with our communities. Justice sector participants must not be cloistered off in our own intellectual world, separated from the society that we are supposed to be serving. Let’s demystify the legal system and court process. Let’s draw back the curtain and explain to the people how the system works.
At the Court of Appeal, we are recommitting ourselves to community outreach starting with our visit to Windsor next month where, among other events, we will meet with faculty and students at Windsor Law, who will be celebrating their newly transformed law school building. My hope and plan are for the judges of our courts to continue to engage in public educational initiatives whenever possible. To reach a broader audience, I also propose to develop web-based video tutorial resources to introduce to the public the different roles of lawyers and judges and help them understand how our system operates.
The work of my colleagues on various commissions and in the preparation of reports also provides much needed transparency and accountability for citizens of Ontario and Canada. In November of 2022, Justice William Hourigan filed the Report of the Light Rail Transit Public Inquiry, a project that has ongoing relevance and will be studied for future public transit projects. In February, Justice Paul Rouleau filed the Report of the Public Order Emergency Commission, which provides important lessons on the use of this extraordinary legislation and insights on issues related to institutional integrity and public response to emergencies. These important undertakings help keep our public institutions accountable to Ontarians and Canadians.
The last guiding principle that should carry us forward cannot be overstated. The bench and the bar must be reflective of our society if our justice system is to remain relevant and preserve the confidence of our public. We must move toward greater diversity, including diversity of race, gender, sexual orientation, and religious belief. Young people in this province must never look at the goal of being a lawyer or a judge as something that is unattainable. As an immigrant from Jamaica, I know how important it is to live in a society that doesn’t impose restrictions on our children’s dreams.
But to be truly reflective of society, we must warmly welcome justice sector participants who represent diverse viewpoints. In today’s highly partisan society, too often we retreat into echo chambers populated only by people who share our opinions. We must be intentional in ensuring that our court system remains a sanctuary where people can freely, respectfully, and productively exchange conflicting points of view.
As we open our courts once more, I enjoin you to commit yourselves anew to the service of the people of Ontario and the protection of our justice system. All participants must work in a spirit of cooperation to ensure that our legal system is responsive, accessible, and reflective of our society. Now is the time to step boldly and proudly into our longstanding duty and responsibilities. In doing so, we recommit ourselves to that most noble task of preserving and enhancing our justice system for all.