Aside from the fact that recordings of court proceedings are now digital, “there really is no difference walking into a courtroom at 361 University Ave. than there was 40 years ago,” said Superior Court Chief Justice Heather Smith.
As she prepares to retire at the end of June, Smith highlighted the successes of her court in a wide-ranging interview with the Star at her Osgoode Hall office and through written answers to other questions.
But she also pointed to challenges that she said cannot be fully tackled until the court receives the support it needs from Ontario’s Ministry of the Attorney General, which is responsible for funding the courts and has control over issues like staffing, facilities and technology.
Smith spent a decade as a prosecutor with the federal Department of Justice, and is believed to have been the first female federal prosecutor in Canada, before she was named to the bench in 1983.
The Superior Court handles all civil cases, a large proportion of family matters and the most serious criminal cases including murder. When Smith was elevated to become its chief justice by prime minister Jean Chrétien in 2002, she says the court’s main challenge was technology.
In 2019, it still is.
The struggle in bringing the court fully into the 21st century is primarily due to an “inadequate” level of activity by successive provincial governments, she said.
Smith bluntly describes the amount of paper that must still be filed in each case, often in person or by fax, and moved through the courtrooms in baskets and binders: “This is madness.”
Even digital files end up being turned into paper copies for filing, she pointed out. And then files get lost, leading to delays, while money is wasted on paper storage costs that are borne by the Ministry of the Attorney General.
“I’m surprised that the public has been as patient as it is. It’s like stepping back in time,” Smith said.
She dismissed any suggestion that the judiciary is an obstacle in modernizing the court system, a criticism that has been levelled at it in the past. She said that the biggest challenge for new judges — 78 appointed since April 2016, of whom 51 are female — is adjusting to an antiquated way of doing things.
The Star contacted the attorney general’s office for comment prior to Thursday’s cabinet shuffle, which saw MPP Doug Downey replace Caroline Mulroney as attorney general. The Star did not receive a response.
During Smith’s tenure, the court established a council of regional senior judges which has worked to make improvements to the court within areas that fall exclusively under the court’s jurisdiction.
Recent changes include a direction to streamline case management of criminal matters to make sure charges are not stayed due to unconstitutional delays. The court has worked with the Ontario Court of Justice to ensure cases originating there but destined for the Superior Court (such as murder) get there within 12 months, where possible.
Meanwhile, changes made in civil court this year will reduce last-minute adjournments and prevent cases from lingering in the system, Smith said. A “one-judge” pilot project was launched in February, under which a single judge will be assigned to case-manage a matter and preside over all of its pretrial hearings and the actual trial. In family court, a strategic plan has been developed to prioritize cases involving families in crisis and children at risk.
She has also sought to improve the education provided to judges joining the court. At her direction, her office launched a program in May 2018 to educate judges on sexual assault law; it’s required for all newly appointed judges, but also available to others who want to refresh their knowledge. The weeklong course includes papers, National Judicial Institute videos and a review of major cases, and the new judges are expected to meet with their regional senior judge after having reviewed the material.
The chief justice also established an Indigenous judicial advisory committee last year, which considers how to educate judges on Indigenous issues and increasing engagement by judges with Indigenous communities.
Finally, the court has become much more of a public institution during Smith’s tenure. It launched a Twitter account, and Smith said her office is working on providing timely responses to media inquiries. She said this reflects the court’s willingness to be more transparent and to engage with the public.
“It also opens the court to greater public criticism,” she said. “I accept that this is a risk, but this risk is unavoidable for any modern institution that wishes to demonstrate it is worthy of the public’s confidence.”
Courtroom space remains another big problem, Smith said, particularly in busy jurisdictions such as Toronto, Brampton and Milton.
In Brampton, Regional Senior Justice Peter Daley took the extraordinary step last year of allowing cameras into the courtroom as he called out the government for a lack of action on crowding at one of the busiest courthouses in the country, which has had to transfer cases to other courthouses.
Meanwhile, Milton’s crumbling and cramped courthouse — “challenged” is how Smith describes it — is struggling under a heavy caseload. A long-awaited new courthouse for one of the fastest-growing regions in the country is set to be located in nearby Oakville, possibly by 2023.
“I have been pressing the Ontario government to remedy these problems but very little progress has been made,” Smith said. “This translates into unacceptable delay and inconvenience to parties. It can impede the ability of judges to perform their constitutional function of hearing and deciding cases. It can prolong uncertainty for families in crisis and puts the well-being of our most vulnerable members of society at risk.”
Court delays and the reasons for them came under heightened scrutiny after the Supreme Court of Canada released its 2016 decision in R v. Jordan, which set strict timelines to bring criminal cases to trial.
Under the Jordan framework, the time limit is 30 months between an accused person’s arrest and the anticipated conclusion of their trial in Superior Court. If the limit is breached, the prosecution must be stayed for violating an accused person’s constitutional right to a trial within a reasonable time, unless the Crown can prove there were exceptional circumstances for the delay.
Smith described the Jordan ruling as “cataclysmic, but in a positive way,” saying she believes all players in the justice system worked to tackle what the Supreme Court described as a “culture of complacency” that was causing unconstitutional delays in criminal cases.
“There was a proactive response by the judiciary, recognizing that public confidence, once lost, would be extraordinarily difficult to restore.”
There have, however, been prosecutions that were stayed due to delays, a situation Smith described as “very regrettable.”
One notable case was that of five men charged in a $13-million fraud case. Their prosecution was stayed last July because there was no judge available to hear the 12-week trial in Toronto until January.
Ensuring that all judicial vacancies are filled as soon as possible is the final challenge facing the court, Smith told the Star. For several years she implored the federal justice minister to do just that in her annual speech at the opening of the courts ceremony in Toronto, saying those vacancies were leading to unacceptable delays.
There were times when more than 10 per cent of all judicial positions were vacant, some for months or even years.
“The court simply cannot hear and decide cases in a timely manner when its judicial complement is not at full strength,” Smith said. There are 10 vacancies in Superior Court, which currently consists of 351 full- and part-time judges, according to the Office of the Commissioner for Federal Judicial Affairs.
The appointment process was revamped in 2016 by then-justice minister Jody Wilson-Raybould to improve diversity on the bench, and Smith said that’s resulted in a number of highly qualified and diverse new judges. But she said Ontario’s judicial advisory committees — the independent bodies that screen judicial applicants for the minister’s consideration — need to be operating all the time to vet candidates, and there must be enough of the committees to handle the volume of applications.
“Finally, the federal government must commit to not leaving a judicial vacancy unfilled for any length of time, and the federal cabinet must keep as a standing item on each agenda for the filling of all judicial vacancies,” she said.
(In a statement to the Star, federal Justice Minister David Lametti said that the government continues to work closely with courts to understand their needs, and thanked Smith for her service.)
While the federal justice minister is responsible for the appointments of Superior Court judges, the task of appointing the chief justice falls to the prime minister. Justin Trudeau is expected to appoint Smith’s successor before the October election, although his office declined to comment when asked by the Star.
And when Smith retires at the end of this month, she said she will look back on her time on the court as “the great honour and privilege” of her life.
“I get immense satisfaction from getting a job done. This is particularly true for a job that I have absolutely loved,” she said.
“However, my father always said the essence of stewardship is twofold: look after your people, and leave the institution better than you found it.
“I hope I have done both.”
Questions for Superior Court Chief Justice Heather Smith
What advice would you give to your successor?
I would echo the advice that was given to me by (former) chief justice Patrick LeSage. He attended every swearing-in ceremony himself and learned about the new judge’s background, family and colleagues. Chief justice LeSage urged me to do the same. I was surprised by this, but I came to know that, as with all things, in this he was right. I have carried this idea with me in my role as chief justice. I meet with every newly appointed judge personally. I always let them know that I am there to support them and assist them in any way I can. Attending a swearing-in ceremony is a perfect opportunity to get a little “vignette” into who the judge is.
What are your thoughts on cameras in the courtroom?
There is a place for cameras in the courtroom — such as has been done recently in a case of high public interest at the Court of Appeal for Ontario and they may well be appropriate for courts such as the Superior Court’s Divisional Court (which hears appeals from administrative tribunals and regulatory bodies.) However, I do not think cameras in the courtroom are appropriate in trial courts where witnesses are testifying about often intensely personal or highly emotional matters such as those which occur in criminal and family law trials, or where juries are engaged. Having cameras in the courtroom could affect the way a witness testifies.
The court probably faces its harshest criticism from the public when it comes to sentencing, particularly in tragic, high-profile cases. There is the criticism that the judge was “too lenient,” or that certain groups, such as racialized individuals or members of the LGBTQ community, will not get a fair shake in court. How would you respond to that criticism?
Judges often are required to make difficult decisions. That is part of the job and our judges understand and accept as part of the job that when they make a particularly difficult decision, one party may well be disappointed with the result. What we must always do in these situations is to try to explain in understandable terms the reasons for the decision so that those reading it can be clearly informed about the basis for the decision. Clear, comprehensive reasons are not just for the parties, but also for the people who are a part of the process, are a member of an affected community, the public and others.
However, I do become concerned if media commentary moves into broad generalizations that call into question whether certain groups, or communities, are treated fairly by the court. This sort of commentary, if made without foundation, can unfairly erode public confidence in the institution of the court.
What would you say are the challenges specifically facing Indigenous peoples in the justice system and what can be done about those challenges?
The former chief justice of Canada, Beverley McLachlin, has called the treatment of First Nations “the most glaring blemish on the Canadian historic record.” It is imperative that we acknowledge the dark chapters of our history if we are to restore and heal our relationships.
The number of Indigenous children and youth in care is a painful reality and tremendous challenge within the justice system that we simply cannot ignore. In recent years, the Superior Court has dedicated portions or all of some of its biannual education conferences for judges on Indigenous issues, with programming covering criminal, civil and family. The family court’s child protection education sessions have focused on experiences of Indigenous children in the child welfare system. We know that judicial education is key to incorporating reconciliation into our work as judges.
These responses have been edited for length.
Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant