Ontario’s Chief Justices Address Backlogs, Stress Need for Accessibility as Courts Modernize
Originally published in The Lawyer’s Daily, © LexisNexis Canada Inc.
The quick modernization of the justice system in the wake of a global pandemic and the “historic backlog” of cases that COVID-19 has created were consistent themes throughout Ontario’s opening of the courts ceremony, held virtually on Sept. 14. One thing was made clear: technology is needed to keep justice moving, but ensuring the courts remain accessible to the most vulnerable is an important priority.
“Our modernization has been rapid. In the coming months and years we will need to evaluate what we have done and continue to invest in technology to ensure that we have the best tools and support to provide efficient and effective access to justice. We will also need to ensure our courts remain accessible to everyone, not just those equipped with laptops, cellphones, and high-speed Internet, but also the most vulnerable amongst us who may lack those tools or the abilities to use them,” stressed Chief Justice of Ontario, George Strathy in his remarks.
Chief Justice Strathy noted that “prior to the arrival of the coronavirus, our courts had functioned in ways unchanged for generations” and during his 50 years as “an observer of the law,” it often struck him that “the law was changing much faster than the way in which lawyers practised, judges judged and courts functioned.”
“In the course of 18 months, our courts have successfully catapulted themselves out of a dusty and fusty 19th or 20th century existence into a world of remote appearances, digital records and electronic filing,” he added, noting that this change was “driven by the pandemic, but realized through unprecedented collaborative efforts of the bench, the bar, and the Ministry of the Attorney General.”
Chief Justice Strathy stressed that “public trust is also fragile” and will “be eroded if those responsible for the administration of justice fail to understand and respect all those we must serve.”
“Public trust in the judicial branch as an institution, and public confidence in the administration of justice, are undermined when some of the most vulnerable members of society believe in their hearts that the system is beyond their reach, doesn’t understand or appreciate their concerns, takes too long, or it is too expensive and cumbersome to serve their needs,” he explained, noting that COVID-19 “shone a bright and critical light on the vulnerabilities of our society, magnifying pre-existing inequalities.”
Chief Justice of the Superior Court of Justice, Geoffrey Morawetz, recalled that when he began his role two years ago his “long-term vision was to bring the court into the 20th century.”
“Then the pandemic happened, which, in a surprising turn of events, pushed us rather quickly into the 21st century instead,” he added.
Chief Justice Morawetz noted that this “new environment has shown us the need to implement a new technological foundation to deliver more accessible justice at this moment and into the future.”
However, he made clear that this approach “comes with its challenges, and we are assessing the situation as we seek to improve.”
“Remote work has had its consequences on mental health, and technology poses a challenge for people who work within the justice system as they adapt to these new processes. The pandemic also exposed issues that we need to fix and improve, namely access to justice and the backlog,” he added.
Highlighted as a success, Chief Justice Morawetz noted the “over 180,000 virtual or hybrid hearings” the Superior Court has held “since the beginning of the pandemic, most commonly in family and civil.”
Chief Justice Morawetz noted the “over 180,000 virtual or hybrid hearings” the Superior Court has held “since the beginning of the pandemic, most commonly in family and civil.”
“This pandemic has bluntly reminded us not only of the need for our software and services to modernize, but for our workforce’s skills to modernize as well. We must equip our staff with the skills necessary to utilize new technology to effectively serve the public in the digital age,” he explained.
Chief Justice Morawetz said a “prime example of technological advancements in the courts is CaseLines, a document sharing platform that allows us to access documents for hearings anytime and anywhere.”
“We began implementing CaseLines August of 2020, and it was quickly adopted across the province. It is an important part of our strategy for tackling the backlog of cases. Last summer, the Ministry of the Attorney General procured CaseLines for our court. CaseLines can change how we do business, allowing us to access files from across the province and beyond. Its ability to make the justice system work will be integral to our services moving forward,” he added.
Chief Justice Morawetz also noted that the Superior Court’s “family law work has been incredibly busy” and throughout the pandemic it has “conducted over 96,000 virtual or hybrid hearings in family alone, including an unprecedented number of urgent requests.”
“Since the start of the pandemic, family cases have been a high priority to ensure the safety and well-being of children and families who have turned to the court for assistance,” he explained, noting that “despite these efforts, many challenges remain.”
“COVID-19 has caused delays that have aggravated the already significant difficulties of making post-separation arrangements, whether relating to children or financial support,” he said, adding that the court is trying to address delays by implementing improvements, such as the “new province-wide Notice to the Profession specific to family law cases and the introduction of the court’s Binding Judicial Dispute Resolution pilot.”
He stressed that the court is “working collaboratively with the bar and working groups to determine how virtual hearings can continue to be utilized once physical attendances can resume.”
“This remains a priority for the court moving into the future,” he added.
With regards to the criminal courts, Chief Justice Morawetz said the Superior Court has “heard over 34,000 proceedings over the course of the last 18 months.”
He stressed that this “is in no small measure attributable to the input and dedication of the prosecutors and criminal defence lawyers to the criminal justice system and ensuring that it kept moving.”
“This required technological solutions and rules of practice to allow for appearances by accused persons and witnesses virtually,” he added, noting that with “the health and safety protocols in place in our courthouses, we have been able to resume and continue to expand our capacity for in-person hearings including jury trials.”
Chief Justice Morawetz explained that “as with civil and family,” moving forward the Superior Court has taken “temporary measures and made them a permanent feature of criminal practice: including e-filing, virtual proceedings and document sharing during proceedings.”
“We will also be developing a set of guidelines for the determination of which proceedings should be virtual and which in person in criminal which will be mindful of the particular access to justice issues involved,” he added, recognizing the “unique constitutional obligations and other issues that delay in criminal cases raise.”
He stressed that the “delay in conducting jury trials has compounded this concern.”
“I have identified addressing the backlog in criminal as a priority for our court,” he said.
Chief Justice Morawetz noted that “brick and mortar courtrooms” are needed for family and criminal cases, so the pandemic “necessitated an exponential increase in virtual hearings” for civil matters.
“Since the beginning of the pandemic, we have conducted over 50,000 civil hearings virtually,” he said, highlighting the civil court as a “prime example of the power of the CaseLines software” as the platform has been “embraced by judges and the bar.”
Chief Justice Morawetz stressed that virtual hearings “will be extremely helpful in the shorter term to help address the court’s pandemic backlog, and are here to stay in the longer term for routine appearances in each court system where appropriate.”
Lise Maisonneuve, the chief justice of the Ontario Court of Justice, said that though “justice participants can feel proud of many accomplishments during the past 18 months, some challenges remain.”
“One challenge we cannot ignore is the backlog of cases in our courts. This past year has seen an extra 60,000 criminal cases added to our backlog. There is also a backlog in provincial offences court. While the number of family matters in case management court has been reduced, there remains a concerning backlog in family trial matters,” she noted.
She stressed that the Court of Justice is “working to address pandemic-related trial backlogs in criminal, family and provincial offences act court” and a “number of initiatives have already been identified to reduce the criminal case backlog.”
“These initiatives include judge-led case management courts; an increase in availability of judicial pretrials to get these matters ready for trial or resolution; and additional plea and trial courts,” she said.
Elizabeth Dowdeswell, lieutenant governor of Ontario, noted in her address that there are “lessons we must continue to heed.”
“One of those is that we really understand and accommodate our interdependents. For climate change is the next existential crisis that we’re facing, and technology and geopolitics will surely intensify global instability and forced migration. We are ultimately and mutually vulnerable on this earth and the challenge of how to protect and support the vulnerable will only deepen and be magnified,” she stressed.
She noted that a “return to normalcy” is “an opportunity to design something better.”
“This pandemic has laid bare for all of us the reality of inequity in our society. We need to have a place for genuine respectful conversations about who and what is essential, who and what matters. We need to break down silos between social and economic sectors. We need to think and act in a holistic and systemic way if we’re going to build resilience in this era of profound and fast-paced change. And we need to listen, really listen, to those who ask questions about justice,” she said.
Attorney General of Ontario, Doug Downey, noted that the pandemic revealed “the gravity of Ontario’s outdated justice system.”
“We cannot be an offline justice system in an online world. So, when we look at how outdated parts of the system still are and the added stresses of backlogs due to COVID-19 it’s clear to me that greater action is needed and I’m here today to tell you new help is on the way,” he said.
Downey noted that in March the Ministry launched the “Justice Accelerated strategy to break down long-standing barriers in the system, overhaul processes and move more services online closer to Ontarians no matter where they lived, including rural, northern and Indigenous communities.”
“We believe justice accelerated is justice delivered and we can get there by refocusing the system around people and their expectations for how justice can be done,” he said, noting the dramatic expansion of “e-filing, reducing the lineups at courthouse terminals by allowing online searching and saving people’s time and gasoline by allowing 24/7 online filing from anywhere.”
We believe justice accelerated is justice delivered and we can get there by refocusing the system around people and their expectations for how justice can be done
“If the banks can let you do so many of these day-to-day tasks at home, I’ve always thought ‘why can’t we?’ But that’s just the tip of the iceberg,” he explained, noting that the Ministry recently “enacted a small change that will save time and money for lawyers and their clients by enabling the table of contents in the Rules of Civil Procedure to be hyperlinked in e-logs in the same way other table of contents on e-logs are.”
“We’re pivoting to new and retrofitted courthouses engineered for the future, built with people in mind in the same way most public buildings are designed these days, like airports and hospitals, incorporating intuitive technology,” he said, noting that as jury trials resume in some jurisdictions, prospective jurors “can now do their pre-screening and check in online.”
“We’ve screened well over 70,000 potential jurors this way. It’s a great example of how technology can help people improve their experience with the justice system and at the courthouse,” he added.
Downey stressed that “demand for trials is forecasted to be 33 per cent higher than in 2019 until at least March 2023.”
“While we continue to take measures to keep people safe and address the threats of the pandemic we’re applying a strategy to address this historic backlog of cases on all fronts. That means working closely with each other, the courts, the police, other justice sector partners, on our shared priorities, ensuring justice continues to be done and that public safety is always prioritized in our communities,” he noted.
Teresa Donnelly, treasurer of the Law Society of Ontario, said the “ravages of the pandemic will continue to be felt for years as we grapple with the long-term medical, economic and mental health challenges.”
“While society will struggle with these impacts, so will the justice system,” she stressed.
“During last year’s opening of the courts, Chief Justice Strathy posited that we were at a turning point in history and pondered whether we could and would apply the same energy and resources devoted to COVID to the viruses of systemic racism, economic inequalities and other barriers to justice. Have we?” she asked.
Donnelly stressed that it is “incumbent upon each of us to harness that same spirit of co-operation and innovation that confronted the pandemic to continue to confront and overcome barriers to justice. And central to that work is transforming to a modern, responsive justice system.”
“We need a system that is diverse, inclusive and reflective of the public, from the judiciary, to the legal professions to clients. A justice system values the diversity of views and recognizes that perspective from varied experiences enrich the fabric of our judicial system and increase access to justice,” she said, further stressing that a “modern, responsive system is one that is timely or there is no justice.”
“Our already overburdened system has additional pandemic related backlogs and unabated these delays will wash away the integrity of our system,” she added.
The ceremony concluded with the chief justice of Ontario presenting the annual Catzman Award for Professionalism and Civility to Jennifer McAleer, a partner at Fasken.
McAleer said she was “truly honoured” to receive this award and told the family of the late Justice Marvin Catzman that she would “endeavour” throughout the rest of her career to “honour this award and your father’s legacy.”