Opening of the Courts

Opening of Courts Speech
The Honourable Sharon Nicklas
Chief Justice of the Ontario Court of Justice
September 23, 2024

Good afternoon to those present and online, and thank you for your interest in justice and our courts, including Minister of Justice Virani and all our distinguished speakers and representatives of legal organizations. A sincere thank you, Chief Justice Tulloch and Chief Justice Morawetz, for your dedication to our work and the collaborative approach I have benefited from during my first year in this role. You are truly inspiring, and it is an honour and privilege to be alongside you. I also extend our gratitude to Attorney General Downey for your commitment to the work of our Court, including the government’s infusion of significant resources to ensure that justice is done in this province. As a result, we are embarking on a complete transformation of the justice system for our Court. It is a fitting time, as our Court will be celebrating 35 years since its inception, and here to celebrate that are our first four Chief Justices – Sidney Linden, Brian Lennox, Annemarie Bonkalo and Lise Maisonneuve, who have been a source of great support and who left their own legacy. Each spent eight years leading the Ontario Court of Justice – each with their own style and vision and a long list of accomplishments. It is fitting, as we recognize the strength of our Court, to acknowledge each of them for their leadership, dedication, and devotion to justice. They were genuinely committed to access to justice in every way, including respecting language rights.

 Our Court now presides over approximately 98 percent of the criminal court work in the province, conducts family court in 25 jurisdictions, and hears all provincial offences matters in the 56 independent municipal courts, where our Justices of the Peace preside over cases governed by over 100 different statutes. Our Court is highly regarded thanks to the foundations laid by these four leaders and all judiciary and justice partners who have been part of our Court. Ontario is the largest province by population, and we are the largest provincial Court with 329 judges and 348 Justices of the Peace, plus 145 per diem retired judiciary who assist. We have 56 base courts and 70 satellite courts serving 29 fly-in communities. We schedule into 680 courtrooms. I was reminded not long ago when in Kenora, that the Rainy River/Fort Frances/Kenora district – the Northwest of the Northwest Region of our province – is the size of Sweden.  We hold Court in the modern, state-of-the-art 10 Armoury Street courthouse in Toronto, as well as Legion Halls and hockey arenas in northern Ontario.

Last year, I spoke of the daunting task of being the team captain, so to speak, of this large Court and responsible for the administration of justice. Of course, I do not take on this responsibility alone. The Court is fortunate to have an impressive and increasingly diverse judicial leadership team at the regional and local levels and two active and supportive associations. I thank all from the Ontario Court of Justice who are here today. I want to particularly acknowledge some of our administrative judiciary who have completed their terms, for their visions and leadership, particularly Regional Senior Justice Esther Rosenberg, Regional Senior Justice Sandra Bacchus, Regional Senior Justice of the Peace Marsha Farnand, Regional Senior Justice of the Peace Bernard Caron, and Senior Indigenous Justice of the Peace Wendy Agnew. We are so grateful for their energy and enthusiasm in these roles. We now welcome Regional Senior Justice Cecile Applegate, Regional Senior Justice Jonathan Bliss, Regional Senior Justice of the Peace Samantha Burton, Regional Senior Justice of the Peace Denette Ellard, and Senior Indigenous Justice of the Peace Libby Garg. All of their voices are welcome and important to our tables.

In addition, I would like to acknowledge that for Regional Senior Justice of the Peace Melanie Bremner and Regional Senior Justice of the Peace Martha De Gannes, this will be their last Opening of Court ceremony as part of our Court’s administrative leadership team as their terms of office expire in the coming year—my profound thanks to each of them for their service to the Court.

A sincere thank you also to Deputy Attorney General David Corbett and Assistant Deputy Attorneys General Samantha Poisson, Randy Schwartz, Paula Reid and Peter O’Keefe and his Courts Digital Transformation team, all of whom have been considerable partners in our efforts to modernize the justice system, along with their highly dedicated and professional court services staff, counsel and our trial coordinators.  Our court staff are the backbone of the justice system, and we could not do any of our important work without them. Our other partners from legal associations, particularly Legal Aid, Boris Bytensky of the Criminal Lawyers’ Association, Federal Crown Attorneys and the Solicitor Generals Deputy Ministers Karen Ellis and Mario Di Tommaso and their staff, have been instrumental in providing ideas for change.

Last year, I spoke of being at a crossroads. But now I feel like on those roads, we are in a full sprint. Overall, despite the best intentions of those working in the justice sector who are deeply committed to fairness and justice, processes have been developed that add time and are cumbersome. There is also an overall lack of proportionality in procedures, with cases generally being treated the same and proceeding in the same manner regardless of their complexity, seriousness, and the needs of the individuals involved. Collectively, cultures have resulted in delays and inefficiencies and have also been linked to the overrepresentation and over-incarceration of vulnerable and marginalized individuals, particularly Indigenous peoples and racialized groups.

We need to sprint to make changes immediately. As those who know me well, aside from my work, I am very sports-minded, so I see this ceremony as a chance to run through our highlights of the past year and to reveal what our game plan is looking ahead where we need to incorporate some of Connor McDavid’s speed, Brooke Anderson’s precision and Summer McIntosh’s courage and strength as we move forward.

First – in addressing criminal court backlog, we held Criminal Modernization Table monthly meetings with the principal leaders of all justice sectors for comprehensive discussions on areas of urgent need.  This group then hosted a Criminal Case Management Forum in Toronto in September of 2023 for over 100 people who are the regional leaders in all justice sectors of all seven Regions across the province, discussing ideas for change in relation to backlog, case management and changing the culture of bail.

There was support for a new practice direction issued on November 1, 2023, called Jordan-Compliant Trial Scheduling, to address the backlog. Under this Practice Direction, the Court will now only offer trial dates expected to result in the matter being completed within 15 months of the date of the charge so that the case is completed before there is concern for unreasonable delay. To achieve this goal, cases are to be set for trial within six months of the charge being laid. Counsel are also given 12 weeks to complete their preliminary steps on a file without coming to Court in 29 sites. Further, we have added a provincial virtual judicial pre-trial team to help where needed.

In January, the Attorney General appointed 44 new Justices of the Peace who were all highly accomplished in their professions and their communities. We then sought to fill 50 other vacancies, and that competition has now closed, as we need a full complement to do all of the necessary work for this transformation.

In the spring, we took to the road, literally, to hold regional criminal case management forums for all principal justice participants in all base courts in the seven regions to receive their views on backlog reduction strategies, transforming case management, and new approaches to bail. We met with hundreds of people in eight separate meetings, visiting two places in the Northwest Region separately—Thunder Bay and Kenora. We learned so much about our vast province and from its inhabitants, including sharing in many important Indigenous cultural practices.

Then, in May, the government announced funding for our Court that included at least 25 new judges, and we have identified their locations to address the most significant criminal case backlog. While we wait for the appointments, we have had our retired per diem judges preside to target the top 10 locations of delay, while studying how other provinces and commonwealth courts schedule matters. We are also piloting some initiatives, including a case management streaming project in Thunder Bay where restorative justice principles are incorporated to address these cases in a more proportionate, and people-centred. Further, we have started a review of our 60 specialized courts and four justice centres that focus on the root causes of crime, where they have a circle of community support to address vulnerabilities and reduce recidivism. This community of courts – drug treatment, mental health, and wellness – has more demand now, and we need to be more expansive in our approaches and in our engagement with community agencies. We know that many people in and out of custody have significant challenges, and we are committed to working together to build a more dynamic justice system that is innovative, collaborative, and principled.

 Through our community consultations, we developed the Court’s first vision statement:

A fair, accessible, and innovative Court that delivers impartial and timely justice, and ensures all participants are treated with dignity and can take part meaningfully.

The statement will apply to all matters the Ontario Court of Justice oversees, including family cases and provincial offences matters, and will serve as the underlying foundation for future strategies and work, including the transformation plan. The Ontario Court of Justice is deeply committed to improving the experience of the people impacted by our justice system. It will focus on the values of fairness and inclusivity, timeliness and accountability, accessibility and independence. To meet the needs of the public and to meet this vision and values, our Court offers comprehensive education to our already highly accomplished judiciary, including relating to sexual assault law, intimate partner violence, coercive control in intimate partner and family relationships, and social context, which includes systemic racism and systemic discrimination. We pride ourselves on being leaders who support inclusive education. I will only highlight here a few of the critical education components from this past year, such as: Associate Chief Justice Aston Hall is the Chair of the Court’s internal Equity, Diversity & Inclusion committee and along with other projects, provided meaningful virtual educational opportunities during February – Black History Month. In April, our Court released a Notice to the Profession and Public regarding introductions and communication of pronouns by lawyers, paralegals, or any party or witness at the beginning of any in-person, virtual or hybrid hearings. On June 21, 2024, summer solstice, our Court’s internal Indigenous Initiatives Advisory Committee, chaired by Associate Chief Justice Jeanine LeRoy, released a new smudging policy for our judiciary, encouraging the facilitation when requested at court proceedings for this traditional practice of some First Nations peoples that involves the burning of medicines, most commonly sweetgrass, cedar and sage. This practice creates a positive mindset and space for those participating. It will foster mutual understanding and respect and can contribute to advancing the shared commitment to reconciliation. We are learning and growing together.

So, for the game plan ahead, we will continue on the road, sometimes sprinting, sometimes reflecting. Still, the key elements are to ensure that court appearances are meaningful and that time spent by all working in the justice sector involves meaningful engagement. For all justice participants, particularly the most vulnerable, there is an urgent need to create justice system stability, which is focused on improvements that are user-focused, with a reduction in the number of appearances and the time to disposition.  This goal stretches across criminal, family and POA matters.

Specifically for the criminal justice system, our goal for next year will focus on four pillars, which were discussed at our second annual criminal case management forum in September a few weeks ago.

They are:

1. Changing the culture of bail by creating guiding principles and focused parameters regarding timeliness and the overall approach.
2. Introducing tailored case management or “streaming”, which includes focusing on proportionality based on giving more attention to serious matters and those in custody. The goal is the expeditious disposition of simple cases and the rapid identification of more complex cases likely to require more counsel time and judicial attention, giving them early focused judicial engagement.  As many more people who are not represented by a lawyer enter the system, we have created an “Unrepresented and Self-Represented Accused Persons Working Group” involving multi-organization collaboration to improve information sharing and guidance.
3. ‘Establishing a “Justice Centre” approach across the province at all base court locations, where wrap-around services are available more broadly to address the needs of overrepresented populations, including those with addictions or mental health challenges, and also racialized and Indigenous peoples. Many of the people who engage with the criminal justice system are struggling with poverty, homelessness, and prior victimization. Our criminal justice system is often tasked with addressing problems that are fundamentally social in nature, such that vulnerable individuals enter the system because of the lack of options and frequently end up re-engaging with the system. We need to adopt a collaborative approach with other social systems for these people.
4. Additional Measures to combat court delays that build on the November 1, 2023 initiatives by ensuring that police disclosure and pre-trials are completed in six months and trials finish by at least 15 months from the charge date. In R. v. Jordan, the majority of the Supreme Court of Canada noted that for the culture of delay and complacency to be addressed, all stakeholders in the criminal justice system must make significant efforts that must also be coordinated. We are firmly committed to leading further change.

We will give the 25 jurisdictions where our Court does family law the same attention in 2025 as we did for criminal law in 2024 by going out into the five regions where our Court does family law and holding case management forums, usually the same week as we are again doing our regional criminal case management forums. We look forward to visiting those regions and hearing from those base courts about how we can better establish best practices and serve families in Ontario. We will also work with Deputy Attorney General Corbett and the Superior Court of Justice to create a roundtable of provincial principal justice participants to discuss family law issues, particularly child protection.

Our 56 Provincial Offences Courts will also be involved in Provincial Offence case management forums in each of our seven regions in 2025 to ensure that they are also part of our collaborative change and scheduling well before concerns exist about delay. Central West Region has held these forums in the past, and we were delighted to see the Attorney General there last year. These forums will be the first of many opportunities for the other regions to bring together the key justice participants for our Provincial Offences Courts to move forward together. We look forward to enhanced collaboration and consistency in practice to better serve the public.

So, as we sprint through 2024 and 2025 and celebrate our Court’s 35th birthday, we know that this is a marathon, not a short race. We are hurried to make changes to ensure that the justice system keeps pace, but we all know that change has to go the distance.

Merci, Migwich, Thank you.