Jordan highlighted at courts opening ceremony

Chief Justice George Strathy says the province’s justice sector needs “substantial investment” in order to bring it into the 21st century.

As some of the province’s top judges and lawyers convened in a downtown Toronto courtroom for the Opening of the Courts ceremony Sept. 13, chief justices took the opportunity to call for the modernization of Ontario’s court system.

The annual ceremony marks the beginning of the legal year.

“We know that the bar would like to increase the efficiency and ease with which you can file materials electronically and to improve the convenience with which you can make remote appearances,” said Strathy, who serves as the chief justice of Ontario.

Chief Justice Heather Forster Smith, of the Ontario Superior Court, said modern court administration and courtrooms are needed in order to make the judicial system more efficient.

“We urgently need the technology that can expedite the administrative and important steps in all areas of the court’s work,” she said.

The provincial government expanded an e-filing pilot in the spring for the Small Claims Court, but critics have said this is a baby step in the provincial court’s move away from the paper-based system.

Making the court more efficient through digitized systems is all the more pressing after the Supreme Court of Canada’s decision in R. v. Jordan, chief justices said.

Jordan set out a new framework in which the reasonable time for criminal cases in provincial courts is 18 months and 30 months in superior courts from the time of charge until the end of trial.

Any proceedings that exceed those timelines will be determined unreasonable and stayed, unless the delays were caused by exceptional circumstances.

“The Jordan timelines must be met, and the Superior Court of Justice embraces this challenge,” Smith said. “We have already begun re-examining and refining within our own authority to meet the new timelines.”

Smith said that while the new practice directive helps the court to meet the new framework’s deadlines in the short term, the “court must dedicate the significant judicial resources needed to proactively monitor and manage complex criminal cases, to ensure they meet the new timelines” in the long term.

In her remarks, Smith called on the federal and provincial governments to act quickly to tackle court delays, saying the courts will need all the resources it can get.

“We cannot meet the Jordan requirements without a full judicial compliment,” Smith said. Ontario has 10 judicial vacancies on its courts — half of which are in Toronto, Smith said. One of the vacancies has existed as long as 18 months.

Smith echoed recent comments from Supreme Court Chief Justice Beverley McLachlin, demanding judicial vacancies be filled as soon as possible.

“Respectfully, I must continue to press the minister of Justice to fill our court’s current judicial vacancies, and to fill new vacancies promptly when they arise,” Smith said.

Lawyers say the new framework set out in Jordan is problematic as few cases make it to that length and those that do not exceed the cap could actually see longer delays.

The old framework, under a decision called R. v. Morin, required the accused to prove an unreasonable delay had created prejudice.

In Jordan, the Supreme Court determined that the old framework was too unpredictable and confusing.

The accused will no longer have to prove prejudice in cases that do not exceed the deadlines, as they will be deemed unreasonable automatically.

But in cases that are below that threshold, the accused will have to show they took reasonable steps to advance the proceedings.

They must also show that the case took markedly longer than it reasonably should have. Previously, matters were typically being stayed when there was a delay of 12 to 15 months, says Toronto lawyer Robert Karrass.

As the courts shift resources in order to deal with complex cases that could be stayed in the new framework, more delays could be created for defendants whose cases are more straightforward, Karrass says.

“By replacing the framework, what the Supreme Court has done is they’ve shaken things up and they’ve done so for certain reasons, but my concern is that the new framework doesn’t really achieve the goal the new framework has set out,” says Karrass.

At the ceremony, Smith urged the provincial government to pick up the pace of its work to digitize the courts.

“Its plans for court technology have great promise, but the pace of delivery is simply far too slow,” she said.

Ontario Attorney General Yasir Naqvi reaffirmed the provincial government’s commitment to further digitize the courts, saying e-filing in the Small Claims Court and other advances are “just the beginning.”