Strathy calls for early fixed trial dates, expanded legal aid, stable funds for pro bono work

By Cristin Schmitz

Law360 Canada (September 1, 2022, 12:41 PM EDT) -- In departing words on the day he retired, Chief Justice of Ontario George Strathy lauded the excellence of the Canadian justice system and its players, but suggested improvements, including early fixed trial dates, and the provision of stable government funding for pro bono representation, substantially expanded legal aid, and to help appellate courts better communicate their work to the public in plain language.

Having completed eight years as Ontario’s top judge, the chief justice posted farewell written “reflections” Aug. 31 on the Ontario courts’ website, titled “Ontario has one of the Best Justice Systems in the World … and we can make it Even Better.”

The chief justice thanked “the 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.”

Chief Justice George Strathy

Chief Justice George Strathy

He suggested, however, that the areas of trial efficiency, legal costs, court communication and judicial independence “require attention to maintain trust in our legal system.”

Change is needed to bring civil and criminal cases to trial within a reasonable time, he said.

“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,” he remarked. “Accused persons, along with witnesses, victims, and jurors, begin to question the fairness of a system when criminal trials are adjourned or unreasonably delayed.”

Chief Justice Strathy recommended that “we must look seriously at procedures employed in other jurisdictions that give parties a fixed trial date at the earliest possible opportunity.”

He also advised that judges “need greater authority and resources” to enable them to manage the progress of cases from beginning to end, and to advance cases to the trial 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,” he explained. “I know from experience that some lawyers and judges will say, ‘It can’t be done.’ I ask, ‘Why can’t it be done?’ ”

Addressing the sad reality that low- and middle-income people find litigation cost-prohibitive — which he described as perhaps the greatest challenge faced by the legal system — Chief Justice Strathy offered two “solutions” he said can be “implemented immediately.”

“First, we need to invest in alternative systems of making some legal services available to people who can’t afford lawyers,” he advised, lauding the private bar for its pro bono work on behalf of 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,” he observed. “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.”

The chief justice stressed that his recommendation for ongoing, stable government funding for pro bono work “is not a big ask.”

Pro bono work is not, however, a substitute for legal aid, Chief Justice Strathy emphasized.

“Improvements must be made to legal aid, including expanding the range of matters covered by legal aid and extending the eligibility criteria,” he urged.

“This includes support for legal services that are provided through legal clinics and duty counsel programs.”

Chief Justice Strathy also said that in order to enhance the public’s confidence in their judicial system, courts need resources that enable to them to communicate their work more effectively.

“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,” he said. “This is perhaps particularly important for appellate courts, which regularly issue decisions that have widespread implications extending beyond the individual parties.”

He noted that the Court of Appeal for Ontario, occasionally provides media briefings and issues decision summaries. “These have been well received, but doing this regularly will require dedicated resources,” he advised.

(A prototype, although not expressly mentioned by Chief Justice Strathy, is the Supreme Court of Canada, which has hired dedicated communications staff and issues popular plain language summaries of many of its decisions.)

Chief Justice Strathy warned against politicizing the Canadian judiciary, urging politicians and members of the bar to avoid making unfair or inaccurate public allegations of judicial bias, and to confront such “attacks” when they are made by others.

In order to bolster public confidence in the judiciary, the top judge also stressed the importance of keeping in place the mechanisms that aim to ensure that applicants for the bench are appointed based on their merits, and not based on their ideology or partisan politics.

“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,” Chief Justice Strathy pointed out.

“We need to be vigilant to maintain the integrity of these structures, as they protect the actual and perceived impartiality of our judiciary.”

The chief justice ended by expressing his “profound admiration and respect for our legal system” and “great faith in the expertise and wisdom of all those who work within it” — which 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,” he said. “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.”

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