Members of the bar in the northern Ontario district of Kenora are up in arms over a recent decision not to appoint a full-time replacement for the only Superior Court judge in the district, leaving them concerned for access to justice and erosion of the profession in the area.
The concern arose when Justice Erwin Stach, the Ontario Superior Court justice for the district, which includes the towns of Kenora and Dryden, the municipalities of Red Lake and Sioux Lookout, and many First Nations communities and covers one-third of the land mass of the province, decided earlier this year to take supernumerary status.
The legal community was later informed that the full-time vacancy left by Stach would not be filled in Kenora, but instead move to Newmarket in the central east region because of a growing population and the need for an increase to the judicial complement in that area.
Stach’s move to supernumerary status took effect mid-February, which means the Kenora district is now being served part-time by Stach until his retirement, and by other judges mostly from Thunder Bay.
Former Kenora Law Association president Bev Wexler says the district has had a sitting judge for 109 years and although the Thunder Bay judges are good, they have busy schedules.
“We don’t have the numbers to compare with the busy centres, but all we’re asking is to keep one judge in full-time residence,” she says.
Geography is also a significant problem in the area, says Wexler, in terms of weather and given that Thunder Bay is a 6.5-hour drive from Kenora and in a different time zone.
“They don’t just slot themselves in for a Monday to Friday in Kenora, they just give us certain dates and you’ll wait months to be able to set a set of dates for your case. The real delays that people feel are in the family cases and in accessibility to fast bail reviews,” says Wexler.
Chief Justice Heather Smith travelled to Kenora last month to meet with members of the local bar, judiciary, and other interested parties, including the chairman of the County and District Law Presidents’ Association, treasurer of the Law Society of Upper Canada, and former president of the OBA, to discuss the issue.
She told the meeting that the move is temporary and the position would be returned to the Kenora district as soon as the judicial complement is increased.
According to a transcript of the meeting, Smith noted, “You are not losing this as a long-term complement position. But we have to have the increase in complement in order to permit me to return it.”
Smith also told the meeting that the judges of the northwest region have undertaken that the level of service to Kenora will remain unaffected and when Stach chooses to fully retire, “There will be a full reassessment as to whether or not he should be replaced by a full time resident judge in Kenora.”
At January’s opening of the courts, Smith said 24 Superior Court judicial appointments would be required this year to achieve a full complement.
“Accordingly, I propose to urge the minister of justice, on an urgent basis, to get the Superior Court of Justice up to full complement,” she said at the time.
The other issue with the decision, says Wexler, is community, given that judges coming in from outside will not have a feel for how the community runs.
“You have strangers - effectively strangers coming in from outside when they come in - for the days at a time that they come in and there’s no continuity and there’s no presence and there’s no exercise of jurisdiction; there’s no legitimacy of the court system for the aboriginal communities, there’s no presence,” she says.
The lack of a full-time Superior Court judge in the district could also erode the law profession in the region, says Wexler.
“It’s going to be very difficult for firms in our district to take on students and young lawyers for training and mentoring - and we need them, because we are ‘the greying bar’ - because if you don’t have regular sittings of the Superior Court, you can’t justify it,” she says.
“I think there will be an erosion because if you lose your centre, these are consequences that flow over time,” she says.
Heather McGee, chairwoman of the OBA’s access to justice section and its former president, attended last month’s meeting and told Law Times the real issue is that the chief justice has had to make allocation decisions based on an inadequate roster for Ontario’s population and the growing demand on the justice system.
“What you see in Kenora is a predictable outcome of inadequate funding,” she says.
McGee notes that the issue is provincial in scope and although it is not happening in other areas of the province, it could happen in another district.
“When you have inadequate resources, there’s going to be failure, because you simply can’t provide adequate coverage for the province when you don’t have enough justices to cover. So you’re going to have justices working double shifts and travelling and finding every way to be efficient, but at the end of the day you’re just not going to have adequate coverage,” she says.
“We have tremendous backlogs right across the province; there really isn’t a judicial district that’s unaffected. You have a lot of jurisdictions where the wait times have just become beyond anything that the public can manage,” adds McGee.
“I think we’re just a microcosm for what could happen in other places in the province or, frankly, to other rural areas in the country. It’s just symptomatic,” says Wexler.