In her recent report, Ontario Auditor General Bonnie Lysyk took aim at the inefficiencies and backlogs in the province’s justice system.
She also cited a lack of accountability and transparency in obtaining critical information from the judiciary and government, thus preventing her office from conducting a thorough audit.
Five days later, Ontario Attorney General Doug Downey announced the Smarter and Stronger Justice Act, in the hopes of addressing a variety of access-to-justice and administrative issues that challenge the province’s court system.
But the fallout from the Conservative government of Premier Doug Ford reducing legal aid access this year hasn’t addressed any of the problems facing court clerks and judges.
Due to delays in trials, accused criminals have their charges stayed and are allowed to walk free.
A landmark Supreme Court of Canada decision outlined the reasonable time for an accused to be tried: 18 months for provincial court trials and 30 months for superior court. Essentially, the ruling said justice delayed is justice denied.
But nowhere is the impact of the court room logjam greater than in Ontario’s family courts. The auditor general found that child protection cases routinely take 18 months to three years to resolve.
Wait times for children to escape physical or psychological harm are far too long. Society has a moral obligation to protect and provide for children. Ontario’s family court morass is failing our most vulnerable citizens.
And we may not even know the full extent of the problem. In order to block the auditor general from certain information, the courts used a clause that states: “No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parents or foster parent or a member of a child’s family.”
Assurances from the auditor general that she would not disclose or make public any identifying information didn’t change the court’s decision.
So at best, the auditor general has only pulled back a small bit of the curtain. We need to know more.
The public ought to be outraged that vulnerable children – some of whom have been abused, neglected or perhaps even worse – are left in a queue waiting for our system to rescue them. If these children can’t have access to justice, what does that say about our society?
To its credit, the Ontario Superior Court has established best practices for child protection cases. It promises to address scheduling and other issues related to child protection cases.
Yet for reasons unknown, these guidelines aren’t available to the public. Even the auditor general was refused a copy.
We’re left to trust that these protocols are working, even though the evidence of wait times suggests otherwise.
Withholding key information from the legislature – through the auditor general – means denying elected decision-makers an opportunity to provide greater funding for family courts. If the backlog can be cleared with the appointment of more judges or the construction of more courthouses, then the legislature has the power to make those changes.
The Progressive Conservative Party traditionally fashions itself as a strong proponent of law and order. Making certain police and courts have the resources is consistent with the standards of government spending they usually support.
Family courts are also being bogged down with self-represented litigants. A middle-class earner going through a separation or a divorce won’t qualify for legal aid, but may not have enough money to hire a lawyer to help guide them through the process.
The Law Society of Ontario estimates nearly 60 per cent of parties in family court aren’t represented by a lawyer.
Judges must take time to explain how family court processes work, slowing hearings to a crawl.
In 2016, Justice Annemarie Bonkalo reviewed possible solutions.
Her report concluded that licensing paralegals to act on behalf of participants in family court would greatly help unrepresented parties get the legal assistance they require. Paralegals charge far less than lawyers, widening the scope of affordable legal services.
In Ontario, paralegals are licensed to represent clients for provincial and summary conviction offences, as well as small claims court and tribunals. Paralegals acting for clients in family court matters such as uncontested divorces and simple child custody issues would make justice more affordable for the average person.
The Law Society of Ontario, with the support of the former Liberal government, voted to implement Bonkalo’s recommendations, along with a commitment to create a training program in family law for paralegals.
Her recommendations have been in the current government’s hands for almost three years. It’s time to put these recommendations into practice.
As the population increases and demands for legal services grow, lawmakers and regulators need to do more than just talk about ideas – they need to follow through on them.
Maddie Di Muccio is a former town councillor in Newmarket, Ont., and former columnist with the Toronto Sun.