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Travelling judge not good enough, Rainy River lawyers say

|Written By Kendyl Sebesta

The Ontario Court of Justice has disappointed lawyers in the Rainy River, Ont., district for the second time since it appointed Justice Thomas McKay as its resident judge as a growing chorus of voices decries the loss of judicial resources there.

McKay became the district’s resident judge in 2005 after Rainy River’s courts operated without one for nearly a decade.

But McKay never made the permanent switch to live in Fort Frances, Ont., on a full-time basis. Instead, he chose to make the nearly three-hour commute from his home in Dryden, Ont., for seven years.

While that was more helpful than not having a resident judge at all, lawyers say the situation still didn’t allow the area’s courts to reach their full potential in terms of resources, efficiency or services. It ultimately

disappointed lawyers who had hoped McKay would make Fort Frances his home, says Clint Calder, a sole practitioner there.

“I think a lot of people were bothered by the fact that he never lived here and lived in Dryden instead,” says Calder.

“People were excited when they announced we were finally getting a resident judge and then to find out, well, that’s not really the whole truth really upset a lot of  people who were hoping for change.”

The situation also made the court’s recent announcement that it would remove McKay from the district in May and move him to Kenora, Ont., particularly tough to swallow, Calder notes. Kenora and Rainy River are about 225

kilometres apart.

“Letters have been written with respect to those concerns,” says Calder. “I think a lot of people really feel losing our only resident judge will have a slew of adverse effects on the courts here. The level of service will decrease, the timing of services will decrease, and the delays will continue to climb.”

Calder adds that although McKay may make his monthly rounds to the Rainy River area in the future, the courts there will likely continue to experience losses of service, increased costs, and limited scheduling until there’s a permanent judge.

“Out here, you don’t really want to travel when it’s dark, so a lot of the time people try and leave early. That applies to judges, too, which means matters are delayed and start to pile up. If we had a judge who lived here, they would be able to stay until whenever without it being a problem.”

The situation has implications for access to justice, including for the many aboriginal people in the area, according to Calder. “If we don’t have a resident judge, it will really take its toll on their ability to access justice,” he says.

The court’s decision not to replace McKay when he makes his move to London, Ont., in May also means the Kenora district will see an increase in the number of its resident judges to four from three. By comparison, Thunder Bay, Ont., currently has six resident judges. Rainy River would have none, making it one of the only districts in Ontario without one.

But Karen Seeley, vice president of the District of Kenora Law Association, says the change might not have as dire an impact as predicted. “I suspect many things could stay the same,” she says. “Right now, the anticipation seems to be that Rainy River will see less court dates and we will have greater court services in turn.”

Seeley notes that because McKay has already been sitting in Kenora’s courts for two days each month, the transition should be a smooth one.

Many among the Rainy River area’s municipal and First Nations leaders have also raised concerns.

“By leaving us without a judge, in my opinion, we really are becoming second-class citizens,” says Fort Frances Mayor Roy Avis.

“We should have the same access to the justice system as other areas in the province do but instead we’re being left out.”

Alternatives to having a local judge won’t work, he adds. “I do believe in a remote area like this, having a judge preside over cases by teleconference is not the way to do it. If you’re relying on that type of system that cuts in and out and is difficult to use, it’s just not going to work.”

In addition to the concerns of municipal leaders, the District of Rainy River Law Association has decried the area’s loss of the only local judge.

But Justice Marc Bode, senior judge for the northwest region, wrote in a Dec. 7 letter to Rainy River association president Barbara Morgan that the changes would make it easier for the courts to offer accessible justice.

“The change in base courts simply will make it easier for the court to distribute the judicial workload, and in particular the very significant travel associated with that workload, more evenly among the judiciary,” Bode wrote in the letter.

“The designation of the next judge’s base court as Kenora or Dryden will not be a factor in determining the amount of judicial time the communities in the district of Rainy River will receive.”

Avis, however, isn’t buying it. “I know people that I’ve talked to around here have become really concerned and are worried about incurring costs from not having a judge here,” he says.

“Yesterday, for example, we had quite a bit of snowfall and if a judge isn’t able to get out here, people incur the costs of having to take off work or find a babysitter just to learn they have to do it all over again the next day.”

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