George R. Strathy Chief Justice of Ontario August 31, 2022
My office at Osgoode Hall looks out on the beautiful sculptures of the McMurtry Gardens of Justice.[1] A striking piece, directly beneath my window, titled “The Rule of Law is a Reflection of all of Us,” was crafted by the Canadian sculptor John Greer. It consists of three massive books, one lying flat and forming a base, and the other two, almost two and a half metres tall, resting on top of it, at right angles to each other. The spine of one of the upright books contains the title of the sculpture, in English and in French. The visible ends of the pages on the side and ends of the books are made of white Italian marble; and the inside “pages” are fabricated from black, highly polished, African granite. A viewer positioned directly in front of the “V” formed by the two standing volumes can see their own image in three ways – one on the surface of each of the opposing pages and the third, in the middle, formed by a composite of the other two images, each reflected on the opposite surface. As the sculpture garden’s website observes, “The sculpture brings to consciousness the fundamental importance of our legal system as a definition of Canada. Our law is a reflection of us as a people and a country.”[2] Our laws, as the sculptor tells us, are a reflection of who we are.
The sculptor has realized his vision for the work. On many occasions, I have watched visitors marvel at the piece, walk around it to observe from all sides, and then stand in the middle to see their own reflections. Like all good art, it engages with the viewer and makes them think.
Inspired by my neighbour, the sculpture, I have been thinking lately about the rule of law, the role of the justice system in sustaining the rule of law, and what we must do to sustain that justice system. My reflections come as I retire at the end of August 2022, having served as a trial and appellate judge for almost fifteen years and as Chief Justice of Ontario for the past eight years. I have also been thinking of some of the exceptional people I have met in the course of my work as Chief Justice – people whose individual and collective efforts in support of the administration of justice in Ontario have nurtured what I am convinced is one of the best justice systems in the world.
As I leave my office, and my judicial role, I salute the justice system and the people who make it work. I also make a plea for investment in our system, to ensure that it continues to effectively discharge its responsibilities.
Our justice system and the rule of law
Ontarians take the rule of law for granted. We also take for granted the justice system that supports the rule of law, as we do with many of our fundamental institutions. The words of Joni Mitchell’s Big Yellow Taxi resonate for me: “you don’t know what you’ve lost ‘til it’s gone.” If we don’t appreciate the importance of our institutions and make necessary investments to keep them healthy, we run the risk that they will be undermined by those who would make them subordinate to their own interests.
The rule of law is affirmed and enshrined in the Constitution Act, 1982, the preamble to which confirms that Canada is founded upon principles that recognize the supremacy of the rule of law. The rule of law encompasses several concepts: laws are made publicly and openly; laws apply to everyone, including governments and lawmakers, as well as private individuals; and the courts will apply the laws fairly, free from outside influence. Because the courts have a constitutional responsibility to interpret our laws, they have a unique duty and responsibility to act as guardians of the rule of law.
The rule of law, essential to a functioning democracy, depends on trust. David Johnston, a former Governor General of Canada, has written:
Trust is the bedrock of democracy. Democracy – in Canada and in countries around the world – depends on the rule of law that strives towards justice. The rule of law depends on trust—a trust in each other as citizens, and a trust between citizens and the institutions that stand for and serve them.[3]
A trusted legal system is fundamental – not only to trust in the rule of law, but also to trust in the other arms of government – the legislative branch and the executive branch. And central to public trust in the legal system, is access to an impartial and independent adjudication system that ensures the fair application of the law, the fair prosecution of those charged with offences and the fair adjudication of disputes.
A stable, modern, and vibrant justice system keeps our democracy strong and promotes social and economic stability. It protects workers and employers; it provides a solid and predictable framework for commercial relationships; it determines and enforces the rights of spouses and children when family relationships break down; it upholds the constitutional rights of those facing criminal charges by applying the presumption of innocence and safeguarding the right to a fair trial before an impartial and independent tribunal. A strong justice system, which reviews the legality of the actions of the executive and legislative branches, enhances public confidence in the institutions of government and serves as a bulwark against abuse of state power.
Skilled and talented people and innovative businesses come to Ontario from around the world, seeking the freedom, safety, stability and tolerance we offer. These are largely maintained by consensus and goodwill. But they are rooted in a legal system that provides guidance on the application of our common values and rules and that can be relied on to fairly adjudicate disputes that cannot otherwise be resolved. It is a legal system that serves as a backstop to ensure individuals and businesses can enjoy the safety, stability, and security they need to plan their affairs and fulfill their dreams; and encourages investment by providing a safe and solid foundation for personal and commercial growth.
But all of this depends on trust. Trust that others will observe the rule of law, and trust in the legal system to provide fair, efficient, and equitable justice when they don’t.
In the next part of this paper, I will explain why I believe Ontario does have a legal system worthy of that trust, a legal system that deservedly has a reputation for being one of the best justice systems in the world. My message is that those charged with the responsibility for this system – lawyers, judges, legislators, and public servants – cannot afford to be complacent. We face serious challenges as we emerge from the pandemic, but we also have some real opportunities to improve our legal system. I will identify some of those opportunities in the final part of this paper.
Ontario’s legal system is among the best in the world
In my capacity as Chief Justice of Ontario for the past eight years, I have met with many Ontarians, with visitors to the province, and with judges and lawyers from across Canada and around the world. They are universally impressed with the excellence of our justice system.
A sound justice system requires a strong and independent bar. Ontario has a dedicated and well-educated bar: over 57,000 lawyers, in addition to approximately 10,000 paralegals. Overseen by the Law Society of Ontario (“LSO”), the legal profession is independent and self-governing. The LSO is responsible for licencing lawyers and paralegals and oversees the conduct of both. It sets admission standards and conducts the final stage of legal education, to ensure that all lawyers have received appropriate training before admission to the bar. It has ongoing professional development requirements, to ensure that lawyers consistently upgrade their qualifications, and it offers extensive professional training and other supports.
The bar is fed by eight outstanding law schools in this single jurisdiction. While our graduates are recruited all over the world, most stay in Ontario. These institutions of learning not only produce lawyers; they produce scholarship, commentary and criticism that enriches the law and the work of the courts and keeps us forward looking.
Across the span of this vast province, there are some 47 regional law associations, which fall under the auspices of the Federation of Ontario Law Associations (“FOLA”) and represent some 12,000 lawyers, primarily in private practice. These associations provide educational and social programming and professional support and advocacy on behalf of their members. As FOLA’s website notes, it represents lawyers who are on the front lines of the justice system, who see its triumphs and shortcomings every day, and who are committed to making the justice system better.
Of particular significance to the business community is ready access to a strong commercial bar and both judicial and arbitral expertise in commercial matters. For more than 30 years at the Superior Court of Justice in Ontario, a team of judges with experience in the management of complex commercial litigation has managed and adjudicated cases on the “commercial list”. Cases assigned to this list include bankruptcies, insolvencies, receiverships and commercial arrangements – litigation which is “real time”, often multi-jurisdictional, and frequently requires active case management by specialized and experienced judges. There is a strong arbitration community, supported by expert counsel and overseen by arbitrators with commercial or other specialized backgrounds, some of whom are former trial and appellate judges.
Ontario has a particularly strong and committed criminal bar, represented on the defence side by the Criminal Lawyers’ Association (“CLA”), a national organization, and on the prosecution side by the Ontario Crown Attorneys’ Association (“OCAA”), which represents some 1,100 Assistant Crown Attorneys and Crown Counsel, and the Association of Justice Counsel (“AJC”), representing members of the Public Prosecution Service of Canada.
A sound legal system cannot exist without a strong and independent judiciary. Ontario has a well-respected, and incredibly dedicated judiciary, internationally renowned for their brilliance, independence, and impartiality.[4] The judiciary are supported by the outstanding court services staff of the Ministry of the Attorney General, who have a deep commitment to public service and to improvement of the administration of justice.
Each year, I have been privileged to preside with the Chief Justices of the Superior Court and the Ontario Court of Justice at the ceremony of the Opening of the Courts of Ontario. We are joined by the Treasurer of the LSO, representing the bar, and by the federal Minister of Justice and Ontario’s Attorney General, or their representatives. The purpose of the ceremony is to report on the state of the three courts and the province’s justice system.
At this ceremony, it has been my honour to acknowledge and welcome representatives of many of Ontario’s legal organizations, who work tirelessly to support the work of the courts and to provide services to their membership in pursuit of the goal of serving the public. These organizations are too numerous to mention individually. They include large national and provincial institutions with broad membership; they encompass organizations representing lawyers in specific areas of practice, such as family, criminal, or personal injury law; and they also include a broad group of organizations representing legal professionals from specific communities or backgrounds. In recent years, we have seen an expanding number of organizations representing legal professionals from racialized and historically marginalized communities. These organizations are particularly vital in nurturing and promoting greater diversity in the bar and ensuring better legal services for all Ontarians.
Each year, I marvel at this demonstration of richness and diversity of Ontario’s legal professionals and at the commitment of all participants to improve the system and to serve the public. I cannot imagine that there is any jurisdiction in the world that has the breadth, skill and diversity of our legal community, providing such strength and resilience to the legal system.
The strength and resilience of the legal community demonstrated itself during the pandemic. Without prompting, bar organizations came forward with guidance and expertise in a wide array of areas including, technology, education, communication, health and safety, and mentorship. There was an unprecedented level of consultation and communication between these organizations, the leadership of the courts, the Ministry of the Attorney General and public health experts, not only to support the continuation of court operations during the pandemic, but also to ensure that consistent public health measures were in place for the protection of the public and justice sector participants. Within weeks, age-old practices and procedures were upended and replaced with new models for remote access and electronic filing, while courtrooms were modified and practices changed to ensure that those who needed to attend a physical courtroom, could do so safely. It was truly remarkable how much was accomplished within months. This demonstrated to me how much can be achieved when we act together.
I firmly believe that if public officials, the bar, and the judiciary could work collaboratively and with the sense of urgency and priority that was demonstrated during the pandemic, we could bring about profound lasting improvements to our justice system – improvements that would address some of the persistent shortcomings in our system and enhance public confidence in the system itself. I turn to some personal observations in this regard.
Continuing to keep our system strong and making it even better
I would like to return to the theme of public trust. We do have one of the best legal systems in the world, served by a community of dedicated and skilled legal professionals second to none. But we also have vulnerabilities, vulnerabilities that can undermine public confidence in our legal system, and ultimately the rule of law.
One of the things the pandemic demonstrated was the importance of public trust in our institutions, and how fragile that trust can be – how easily it can be lost. There are many ways in which public confidence can be undermined. It can be undermined by legitimate disappointment in the performance of our institutions; it can be undermined by inequality of access; and it can be undermined by misinformation and lack of communication. Conversely, when our public institutions function well, act fairly and equitably, and communicate well, confidence increases.
Confidence in all our institutions rests on trust, but this is particularly so for our legal system, which is relied upon as a last resort to ensure that other institutions and individuals act in a trustworthy manner.
In the final part of these remarks, I highlight four areas that require attention to maintain trust in our legal system.
Efficiency
One of the greatest challenges facing the justice system is the need to bring all cases – civil, family, and criminal – to trial within a reasonable time. Delay in achieving justice undermines confidence in our justice system; it causes people to give up in frustration or look elsewhere for solutions.
Prior to the pandemic, the trial courts – the Superior Court of Justice and the Ontario Court of Justice – had been making progress in addressing delays. The pandemic has caused some setbacks in this regard, and courts in many regions are faced with greater backlogs of cases awaiting trial. While increased use of technology and investments in improved technology may help to address this issue, this alone will not solve the problem.
I believe we must improve the efficiency of our pre-trial practices in order to bring cases to trial in a reasonable time. This is a constitutional obligation in criminal cases, but it should be a requirement in all cases. The expression “justice delayed is justice denied” is a truism. People whose lawsuits take years to get to court, at a cost of tens if not hundreds of thousands of dollars on the way, often don’t feel like they got any kind of justice. Accused persons, along with witnesses, victims, and jurors, begin to question the fairness of a system when criminal trials are adjourned or unreasonably delayed.
To address this, I think we must look seriously at procedures employed in other jurisdictions that give parties a fixed trial date at the earliest possible opportunity. And judges need greater authority and resources to enable them to manage the progress of cases from beginning to end, to advance them to that date. Nothing focuses the attention of lawyers and litigants like a fixed trial date and a judge who is prepared to roll up their sleeves and work with the parties to ensure that they prepare for that date. I know from experience that some lawyers and judges will say, “It can’t be done.” I ask, “Why can’t it be done?”
Cost
We must also continue to improve access to justice, particularly for low- and middle-income people. Confidence in the judicial system is eroded if people believe that a person needs to be wealthy to have fair access to the courts. There is perhaps no greater challenge to our legal system than the cost associated with accessing it. In civil cases, legal fees are a strong disincentive to resort to the courts. This accounts for the increasing number of individuals personally representing themselves before the courts. In criminal cases, where the state, with all its resources, is prosecuting the individual for a crime, legal aid is currently only available for those who are truly impoverished and only for some offences.
The consequence is that the criminal and civil courts are increasingly populated by individuals who are permanently or occasionally either unrepresented (they have no lawyer) or they are self-represented (they act as their own lawyer). This sometimes occurs by choice, but more frequently because the unrepresented person has no realistic choice. Cases with unrepresented litigants get adjourned time after time. They start and they stop. They drag on … and on … and on. The cost of this situation to the public (i.e., the taxpayers) is astronomical. It is astronomical because every day in court costs money – salaries for court staff, judges, lawyers, litigants, witnesses, police officers and others.
I offer two solutions to this situation – solutions that could be implemented immediately.
First, we need to invest in alternative systems of making some legal services available to people who can’t afford lawyers. Commendably, the private bar is prepared to assume its traditional role of providing pro bono publico (for the public good) assistance to unrepresented litigants. As Chief Justice, I saw how well organizations like Pro Bono Ontario and the Court of Appeal Inmate Appeal Program can assist in designing and supporting programs that can increase access to justice. There are volunteer lawyers all across the province who are prepared to donate their services in order to assist unrepresented litigants. But, to ensure the stability and longevity of their programs, there needs to be ongoing and stable public funding to assist with their administrative costs. There is empirical evidence that the cost of funding pro bono programs is far offset by the corresponding savings to the justice system. This is not a big ask.
This is not, however, an alternative to the second solution – an improved legal aid system.
Improvements must be made to legal aid, including expanding the range of matters covered by legal aid and extending the eligibility criteria. This includes support for legal services that are provided through legal clinics and duty counsel programs.
In addition to improving access to justice in these ways, we must also realize that the legal system has become a default pathway to address issues of mental health, addiction, and poverty. This is not only unjust, but also expensive and inefficient. We have made some progress in the Ontario courts in developing therapeutic court programs that help connect people to appropriate supports and services. These programs are extraordinary, but there are not enough of them, and they are not available throughout the province. Moreover, increased investment in social programs related to mental health, housing and social supports would prevent many matters ever reaching the point where courts become involved.
Communication
In addition to these specific proposals, public confidence in the rule of law will be enhanced if the courts are provided with resources to more effectively communicate their work to the public. Law is a specialized and technical field, and our judgments deal with complex issues. It is no small feat to express what we do in widely understood ways. Nevertheless, it can be done and there are those who are uniquely skilled to synthesize and communicate court practices and judicial decisions in ways that are better understood by the public and the media. With the rise of electronic communication and social media, misinformation can quickly be disseminated, and there is a need to match this with clear and accurate information from trustworthy sources. Courts need increased resources to be able to keep up with the pace of electronic communication and provide reliable, accurate, and understandable information about the work they do and the decisions they render. This is perhaps particularly important for appellate courts, which regularly issue decisions that have widespread implications extending beyond the individual parties. At the Court of Appeal for Ontario, we have on occasion provided media briefings and issued summaries. These have been well received, but doing this regularly will require dedicated resources.
Judicial Independence
Finally, I believe we need to remain vigilant in guarding judicial independence. Public confidence in the judicial branch of government depends on its actual and perceived separation from outside pressure or control. The judiciary requires this independence to discharge its constitutional responsibilities.
The judiciary must be independent in fact, and it must be perceived to be independent. In Canada, we have avoided the tendency found in some other countries to politicize the judiciary. When I read articles in newspapers from other countries about judicial decisions, the first sentence often mentions the political party or politician that appointed the judge. This does not regularly occur in Canada, and there is a good reason for it: it is a poor predictor of how judges decide cases. Historically, judicial appointments in Canada have been based on the qualifications of the candidates and the needs of the justice system, not on ideology. We have developed practices that ensure that Ministers of Justice and Attorneys General select judges from pools of candidates who have been vetted and recommended by independent committees. We need to be vigilant to maintain the integrity of these structures, as they protect the actual and perceived impartiality of our judiciary.
We also need to remain vigilant in confronting and correcting those who make unfair or inaccurate public comments about bias in the judiciary. Bias can, of course, occur, but unfounded and scurrilous attacks on judges corrode faith in the judiciary and undermine faith in our democracy. It is often difficult or impossible for judges to respond to such comments, and it is important for politicians and members of the bar to avoid such comments and confront them when they are made by others.
Conclusion
As I enter the next stage of my life, and move on to other endeavours, I do so with profound admiration and respect for our legal system and with great faith in the expertise and wisdom of all those who work within it. This admiration only increased during the pandemic. I saw what could be achieved when, given appropriate resources, public officials, administrators, lawyers, and judges worked together to ensure that the system survived the crisis, and actually emerged stronger and more flexible than ever. I am confident that in the coming years, those same constituencies will continue to improve our legal system, thereby maintaining and enhancing public trust, not only in the courts and the judiciary, but in all the institutions of our democracy.
*I express my thanks to Associate Chief Justice Fairburn and to Jacob Bakan, Special Counsel to the Office of the Chief Justice, for their suggestions and comments on this paper.
[2] The sculptor’s observations on his piece were, in part:
The ideas behind this monument are about a culture being an accepted shared idea of what constitutes reality. Within this construct is a collective code of moral conduct written into law. These encoded laws represent each and every one of us within our culture. Laws are not an imposition on us, but they are a reflection of who we are. To see ourselves as others see us is both empowering and humbling.
Standing centrally before the monument, you see your image reflected in such a way as to see yourself as others see you. In a way, it is like seeing yourself outside of yourself and in the public space. The sliver of light between the law books represents possible change. Like the line in Leonard Cohen’s song: ‘There is a crack in everything, that’s how the light gets in.’… the sign of hope.
[3] David Johnston, “Trust – Twenty Ways to Build a Better Country, McClelland & Stewart, Toronto, 2018 at pp 1-2.
[4] The Court of Appeal for Ontario, Ontario’s highest court, sits in Osgoode Hall in Toronto, and has approximately 30 judges, including the Chief Justice of Ontario and the Associate Chief Justice of Ontario; the Superior Court of Justice, one of the busiest trial courts in the world, has more than 300 judges and sits in 52 locations in 8 regions across the province; and the Ontario Court of Justice, which consists of 285 judges and 354 Justices of the Peace, hears cases all across the province in 65 base courts and 81 satellite courts. In an average year, it deals with approximately 600,000 criminal charges, over 25,000 new family proceedings, and more than a million charges under the Provincial Offences Act.