JUSTICE FOR CHILDREN AND YOUTH
CANADIAN BAR ASSOCIATION, ONTARIO
CONTENTS
Thursday 26 November 1998
Courts of Justice Amendment Act (Improved Family Court), 1998, Bill 48, Mr Harnick /Loi de 1998 modifiant la Loi sur les tribunaux judiciaires
(amélioration de la Cour de la famille), projet de loi 48, M. Harnick
Ministry briefing
Mr John Twohig, counsel, policy branch, Ministry of the Attorney General
Ms Linda Groen, family initiatives project, Ministry of the Attorney General
Ms Christina MacNaughton
Mr John Black
Justice for Children and Youth
Ms Sheena Scott
Ms Cheri Strathdee
Canadian Bar Association -- Ontario, family law section
Ms Judith Huddart
Ms Joanne Stewart
STANDING COMMITTEE ON FINANCE AND ECONOMIC AFFAIRS
Chair / Président
Mr Garry J. Guzzo (Ottawa-Rideau PC)
Vice-Chair / Vice-Président
Mr Wayne Wettlaufer (Kitchener PC)
Mr Ted Arnott (Wellington PC)
Mr John R. Baird (Nepean PC)
Mr Jim Brown (Scarborough West / -Ouest PC)
Mr Garry J. Guzzo (Ottawa-Rideau PC)
Mr Monte Kwinter (Wilson Heights L)
Mr Gerry Phillips (Scarborough-Agincourt L)
Mr E.J. Douglas Rollins (Quinte PC)
Mr Tony Silipo (Dovercourt ND)
Mr Wayne Wettlaufer (Kitchener PC)
Substitutions / Membres remplaçants
Ms Annamarie Castrilli (Downsview L)
Mr Ed Doyle (Wentworth East / -Est PC)
Mr Peter Kormos (Welland-Thorold ND)
Mr Gerry Martiniuk (Cambridge PC)
Mr Bart Maves (Niagara Falls PC)
Mr Trevor Pettit (Hamilton Mountain PC)
Mr Toni Skarica (Wentworth North / -Nord PC)
Clerk / Greffière
Ms Susan Sourial
Staff / Personnel
Mr David Rampersad, research officer, Legislative Research Service
The committee met at 1002 in room 151.
SUBCOMMITTEE REPORT
The Vice-Chair (Mr Wettlaufer): Good morning, everyone. We'll call to order the meeting of the standing committee on finance and economic affairs to deal with Bill 48, the Courts of Justice Amendment Act. You all have in front of you the report of the subcommittee. I wonder if we could have a mover.
Mr Gerry Martiniuk (Cambridge): I move that the subcommittee report made on November 14, 1998, be adopted.
The Vice-Chair: Is there any discussion?
Mr Peter Kormos (Welland-Thorold): If I may, Chair, can I ask about the numbers of individuals or groups wanting to make submissions? Obviously I'm concerned about the adequacy of the time frame. Could we determine from the clerk whether there was a huge demand for participation or whether the time frame that's provided for the subcommittee report is adequate?
The Vice-Chair: My understanding is that three parties consulted on this and agreed that there would be the one day slotted for it.
Mr Kormos: But we're now debating the subcommittee report, you see. This is the purpose of presenting this to the committee, because now the committee has a chance to determine its adequacy. The committee can reject this. It doesn't matter what the three members of the subcommittee determine. That's why we have a report. Now the report comes to committee and it's being debated to determine whether or not the committee's going to accept the report. The committee can reject the report.
I'm asking, in the course of that, if the time frames contained in the subcommittee report are sufficient. If they are, then obviously I'm going to be inclined to support the subcommittee report. Don't snatch defeat from the jaws of victory here.
The Vice-Chair: Mr Kormos, you will be very pleased to note, I am advised by the clerk that we have slotted in everyone who asked make a submission.
Mr Kormos: Well, God bless. Good to hear. That wasn't that difficult, was it, Chair?
The Vice-Chair: Any further discussion? All in favour? Passed.
COURTS OF JUSTICE AMENDMENT ACT (IMPROVED FAMILY COURT), 1998 / LOI DE 1998 MODIFIANT LA LOI SUR LES TRIBUNAUX JUDICIAIRES (AMÉLIORATION DE LA COUR DE LA FAMILLE)
Consideration of Bill 48, An Act to Improve Court Services for Families by Facilitating Expansion of the Family Court and to make other amendments to the Courts of Justice Act / Projet de loi 48, Loi visant à améliorer les services fournis aux familles par les tribunaux en facilitant l'expansion de la Cour de la famille et apportant d'autres modifications à la Loi sur les tribunaux judiciaires.
MINISTRY BRIEFING
The Vice-Chair: OK, we have in front of us members from the ministry for a ministry briefing. Would you please identify yourselves for the record, please.
Mr John Twohig: My name is John Twohig. I'm with the policy branch of the Ministry of the Attorney General.
Ms Linda Groen: I'm Linda Groen. I work with the family initiatives project.
Mr Twohig: The essential structure of the Unified Family Court, as we now know it, referred to as the family court branch of the Ontario Court (General Division), was put in place in 1995. The act provides that the court can be expanded to other areas of the province by proclamation when the federal government makes judicial resources available. In the 1995 expansion, Kingston, Napanee, London and Barrie were added to the list of locations for family courts following the successful pilot project in Hamilton, initially begun in 1977 and made a permanent fixture of the court structure in 1985.
In Unified Family Court, as you know, all family law jurisdiction is unified at one level of court, as opposed to two levels of courts elsewhere in the province.
The goals of this bill were discussed during second reading and are summarized in the explanatory notes and in the compendium. Just by way of very brief background, early in 1997 the federal government announced that it was prepared to make more judges available across the country to allow for the expansion of Unified Family Courts. The amendments contained in Bill 48 were requested by the judiciary as part of the planning for the further expansion of the family court branch of the Ontario Court (General Division).
To highlight some of the major features of the bill:
The bill makes it clear that the Chief Justice of the Ontario Court (General Division), Chief Justice LeSage, is head of the family court and provides for the full integration of the family court into the regional structure of the Ontario Court (General Division) This is accomplished while recognizing the specialized nature of the family court. The Ontario Court (General Division) is administered by the Chief Justice through eight regional senior justices who are located in the eight regions of the province which have been established for judicial administrative purposes.
The bill abolishes the position of associate chief justice, family court, but creates as a permanent position the position of senior judge of the family court. As an aside, I note that the position of associate chief justice, family court, was never provided for by the federal government, and the position was never filled.
The creation of a senior judge position, with the responsibilities spelled out in Bill 48, provides a unique recognition of family law matters. The senior judge joins the regional senior judges and the associate chief justice as part of the judicial executive of the Ontario Court (General Division). The bill also deals with other issues such as jurisdiction over young offender matters, rotation of judges into the family court and out of the family court, and other minor amendments.
In relation to the Young Offenders Act, the Ontario Court (Provincial Division) and the family court have what is known as concurrent jurisdiction over young offender matters. Either court is empowered to hear what are commonly called YOA cases. There has been some debate over which court is more appropriate for these cases. In the approximately 44 court locations in Ontario where there is no family court, YOA cases are heard in the provincial division. Elsewhere in Canada, YOA cases are heard in the provincial courts, although there was some discussion that Nova Scotia may include YOA cases in their new Unified Family Court.
When the family court was expanded in 1995, YOA cases were heard in Hamilton, Kingston, Napanee and London. YOA cases were pulled by the judiciary from Hamilton in 1995 and from Kingston in September 1998. We understand that the judiciary, after consultation with local bar and the community liaison committees, intends to pull these cases from the Napanee location in January 1999 and from London in early in 1999. The removal of YOA cases allows for greater expansion of the family court and effectively deals with issues that have arisen concerning court facilities and holding cells.
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The amendments also recognize the constitutional authority of the Chief Justice to rotate judges in and out of the family court. In the case of Valente and the Queen, the Supreme Court of Canada held that one of the essential conditions of judicial independence relates to the institutional independence of the tribunal. At page 709 of that case, the Supreme Court said:
"Judicial control over the matters referred to by Howland, Chief Justice of Ontario -- assignment of judges, sittings of the court, and court lists -- as well as related matters of allocation of courtrooms and direction of administrative staff engaged in carrying out these functions has generally been considered the essential or minimum requirement for institutional or collective independence."
Any legislative limits on judicial control over the assignment of judges would be inconsistent with this principle.
The other, minor amendments included in the bill are clarification of the appeal routes for certain enforcement matters; transitional provisions for pending family law cases in areas where the family court is established; delete reference to part III of the Courts of Justice Act, which no longer exists; and delete reference to what used to be called the Unified Family Court.
One matter unrelated to the family court which is included in this bill involves cabinet's authority to fix the remuneration of provincial judges.
Turning to the bill to give you an overview, the bill consists of four sections and two schedules:
Section 1 indicates that only one of the schedules will ever become law. The Courts Improvement Act was the act that was passed in 1996 which would have changed the names of the courts. If that act has been proclaimed when Bill 48 comes into force, then schedule B is in force. If the act -- that is, the name change -- has not occurred, then the more complicated schedule A comes into force.
I can tell you now that the federal government has passed their complementary legislation to change the court names. That occurred last week, November 18, so there's no longer any impediment with proceeding with proclamation of the Courts Improvement Act. I can't tell you when that might occur, but it seems more likely that schedule B would be the section that comes into force.
Section 2 of the bill restores the regulation-making authority to fix remuneration for provincial judges. For the most part, this is already covered in the framework agreement, which has formed part of the Courts of Justice Act since 1995. The agreement, however, does not include pensions, and the function of the regulation is to cover this aspect of remuneration and any other gaps until the framework agreement is fully operational.
Subsection 2(2) provides that in case of conflict between a regulation and the framework agreement, the framework agreement prevails.
Subsection 3(1) provides that the act comes into force on proclamation except the remuneration section, section 2, which is deemed to have come into force on February 2, 1995.
Section 4 sets out the short title of the act.
Schedule A can be found on pages 3 to 14 of the bill. It consists of three parts. Part I makes the amendments to the Courts of Justice Act which I've just summarized. Part II repeals a number of provisions in the Courts Improvement Act -- that is, the name change act -- which are no longer required. Part III comes into force on the day the Courts Improvement Act is proclaimed and restates the bulk of the amendments in part I to reflect the new court names. A limited number of part I amendments are not restated because they do not refer to new names of the courts or court officials.
By way of example, you will find at section 2 in schedule A, part I, the composition of the family court. That section is essentially in all respects repeated in subsection 20(3) in part III of schedule A and again in section 2 of schedule B. So in effect -- and I apologize for the complication of this -- you have the bill repeated almost three times in the schedules because of the lack of proclamation of the Courts Improvement Act.
Schedule B is set out on pages 15 to 20 of the act and it makes the amendment requested by the judiciary which come into force when the Courts Improvement Act is proclaimed.
Unless there are questions, that's my overview.
The Vice-Chair: I believe there probably will be questions. We have allotted, according to the subcommittee report, five minutes per caucus, beginning with the opposition.
Ms Annamarie Castrilli (Downsview): I'd really like to make a few comments more than ask a question. The bill, on the face of it, is reasonably clear, despite what you've mentioned in terms of the repetition that was required because the legislation hadn't been proclaimed.
It's fair to say that there's a great deal of support for this bill. I think the judiciary has wanted it. The experiments with the Unified Family Court have been by and large successful. The notion that we would have an integrated justice system with respect to family law is not only appealing; it's necessary. It makes absolutely no sense that you would have individuals who are involved in family law having to appear before two different courts, as often happens.
The concerns, from our perspective, really revolve around two issues: One is the adequacy of the court system to be able to address the very real issues that come before them, and by that I mean the justice system in general, not just the family court. Some $45 million has been cut from front-line services in justice, and one has to wonder whether that can really deliver the kinds of services required at this point.
We've been through hearings, last week and the week before, on the legal aid bill, and we've heard just how difficult it is for individuals to get justice, particularly in the area of family law, where we know that many individuals go unrepresented, some 67% of people in family law. So the family law judges aren't simply adjudicating; they're having to deal with a whole lot of other problems, including, sometimes, having to give information to people before them, to plaintiffs. This is very serious, because the family courts are becoming, as the family law association said, a dumping ground for a lot of social problems. What we do in family law is critical and it's important, and that's why this bill is timely.
In terms of concerns, as I said, there's the whole issue of the justice system and the adequacy of the justice system to be able to meet the needs of Ontarians, but speaking specifically to the bill, the concern we have is that given the complexity of family law, given that you're dealing with a whole series of statutes, where you're dealing with financial and emotional, often traumatic, matters, it's important that the legislation provide for expertise in that area. We've talked about this in the House, and I want to raise it because I think it's important for all members of the committee to think about this.
It has been the law and it has been traditional that judges in family law would have expertise in family law. This particular legislation deviates from that. It gives a great deal of flexibility to the Chief Justice and the senior regional judges to rotate judges through their divisions and through family court, but there's no requirement that they be judges who are experienced in family law, and that's critical here. I want to stress that. We're not filibustering on this bill. We are very generally concerned about the quality of the justice that will be rendered.
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That's not to say that the Chief Justice and the regional judges don't have the best of intentions in mind, and even the Attorney General may feel as I do. In fact, they've stated that it's important to have that family law experience, so we are puzzled as to why it's not specifically set out in the bill.
Family law is a very sensitive area that requires extreme delicacy and skill, and you need people who've had practice at the bar in that area to be able to make competent decisions. I hope we'll have an opportunity to discuss this further during the committee.
The Vice-Chair: Would the ministry like to respond?
Mr Twohig: Only to say that I believe we agree that a specialized background in family law matters is important. The difficulty is that in my view, the only way you're only going to have family court judges sitting in family law matters is to create the family court as a separate, free-standing court. That hasn't happened. It's part of the Ontario Court (General Division) and as such, there will always be a certain amount of rotation of judges into the family court. That has already occurred in the five locations where the court sits.
The other bit of comfort is that the federal government appoints certain judges to the family court. The expectation is that those judges will be the core judges who will stay in that family court and that the rotation is supposed to be a minor or supplemental part. That's the expectation. I think the problem we have -- referring to the Valente case, which I quoted -- is that once the court structure is established, once the walls are built, we have a very limited capacity, from a constitutional point of view, to direct the Chief Justice who may or may not be rotated into the court.
Ms Castrilli: Can I ask --
The Vice-Chair: Sorry, Ms Castrilli. You're out of time.
Mr Kormos: If Ms Castrilli wants some time, let her use some of mine, because we've got to move on and get this thing dealt with.
Ms Castrilli: Only to say that I understand what you're saying, but I think --
Mr Kormos: Don't use all my time.
Ms Castrilli: No, I'll be brief.
It's not an issue of fettering the discretion of the judiciary, the Chief Justice and the senior regional judges. Nevertheless, I believe it's important to be very clear as to the standards that we expect in family court, and you do that by setting out some minimum qualifications.
Mr Kormos: I read about you in the paper today, by the way, Chair. Did you see that? You don't get in the press often.
The Vice-Chair: I don't usually read about myself in the press.
Mr Kormos: The Toronto Star, by God: Wayne Wettlaufer versus Gary Leadston. They say nice things about you. They say, "But sources say Wettlaufer has been more attentive to the riding." That'll go a long way in a nomination contest.
The Vice-Chair: I thank you for those kind comments. I'll use them in my campaign.
Mr Kormos: "But insiders say this gentlemanly veneer barely conceals the animosity between the two, and the campaign could get nasty."
The Vice-Chair: Don't believe everything you read.
Mr Kormos: It's insiders, though.
The Vice-Chair: Unnamed.
Mr Kormos: If it was a quoted source, you could suspect they were merely trying to put spin on the matter, but this is inside dope. You know what? I'm betting on the "nasty" part.
In any event, Ms Castrilli has addressed the concern. It's been addressed during the course of second reading debate: (1) the rotation of judges; (2) the non-exclusivity of family court judges in dealing with YO matters, the junior level, the first level, level 1. Is that the terminology? Level 1?
Ms Groen: You're talking about the younger age group, the phase 1?
Mr Kormos: Yes, thank you: phase 1.
Ms Groen: There's no distinction in the legislation, but there does seems to have been a distinction on how we --
Mr Kormos: I hear what you're saying about there being no fixed jurisdiction currently, which is what you said, yet in practice, where I come from -- I can't speak for Toronto, but my sense is that in most of smaller-town and small-town Ontario, yes, there has been exclusivity in practice by family court judges dealing with phase 1 YOs.
Ms Groen: I think that may have been the case 10 years ago.
Mr Kormos: It wouldn't be inappropriate for you to comment in that regard.
Ms Groen: But I think in the last 10 years, approximately, judges have been appointed with two hats, so often they will be expected to have criminal matters and family matters, depending on what the work is. So while it was the case some years ago, it is not the case in the majority of the province now.
Mr Kormos: I'm wondering, Chair, if there's any way of getting -- does the ministry have data in that regard? I'm not challenging you. I would just very much like to see what the status quo is in 1998 as to the portability of what I call provincial court, family division, versus provincial court, criminal division, judges in dealing with phase 1 YOs and/or family matters. I know that jurisdictionally they can do it. I'm just wondering if there are data or anything that would --
Ms Groen: I don't think we have data on it, because it's within the purview of the judiciary to schedule matters.
Mr Kormos: Yes, I know. So all we've got is anecdotal --
Ms Groen: Yes.
Mr Kormos: Do you agree with me? That's the difficulty. I'm not criticizing you folks, but the Solicitor General, the Ministry of Correctional Services, the Ministry of Attorney General, considering that they're dealing with -- talk about anecdotal. My anecdotal impression is that they seem in some respects to have a pretty poor handle, statistics-wise, on some of the stuff that's going on. Is that a fair observation, or am I way out of line in suggesting that? Again, no criticism of either of you, obviously.
Ms Groen: They're not separated. Young offender matters are not separated by age group, nor are the hours spent on the various age groups tracked.
Mr Kormos: But you understand my problem. Here we are, indicating that this could be problematic from our perspectives or from the input we've received. Then we're putting this to you and you're saying, "That maybe was the case, that there was this exclusivity by practice 10 years ago, but not now." I'm saying, OK, I don't dispute what you've got to say; your observations are as legitimate as anybody else's, perhaps more so. But then I'm saying, "Show me," and you have to say, "I can't, because it's not the sort of thing that's tracked." I find it bothersome that that information isn't available in terms of data, empirical reporting. I'm suggesting that's a problem.
Mr Twohig: Just to wade in here a little bit, my understanding is that prior to 1989, the Provincial Division had three sections: the civil, the criminal and the family. It was very easy then to try cases in a separate division. When that court was merged, we have the Ontario Court (Provincial Division) and we have judges, and they hear a whole cross-section of cases, family and criminal. I don't believe, as Linda has indicated, that we track which judges hear which matters, let alone whether they're hearing phase 1, phase 2 or phase 3 in young offender matters.
Mr Kormos: What I'm saying is that maybe we should be or should have --
The Vice-Chair: Thank you, Mr Kormos. Your time is up. I already gave you extra time because of those nice things you said about the Chair earlier. We'll move now to the government; Mr Martiniuk.
Mr Kormos: Chair, I should indicate that I endorsed Mr Ford the other day here in committee. If you'd like me to endorse you, I'd be pleased.
The Vice-Chair: That's the kiss of death. Thank you, but no thank you.
Mr Martiniuk: We'll be hearing presentations, so I will be short. I think it's fair to say that all parties welcome the additional Unified Family Courts. They have proved to be effective and efficient. A one-window shopping scheme is welcome. We are most pleased that we will have an additional 17 judges.
I take it that the two major issues of our discussion -- the first will revolve around the Young Offenders Act. In a perfect world, the position put forth by Mrs Castrilli could have some validity. Unfortunately, as we know, the Ontario government does not have control over the number of Unified Family Court judges within the jurisdiction of the federal government. Therefore, injecting young offenders into the Unified Family Court system will of necessity take away from their use in family matters. In this imperfect world, we must choose our priorities.
I happen to think that a marriage breakdown and its effect on the children -- it can be very traumatic and it's important that the matter be dealt with. I personally experienced, as a lawyer, family matters, and I realized that the longer the disputes go on the more solidified each position becomes, to the detriment not only of the parents but, more importantly, of the children. I look forward to the debate in regard to that issue.
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In regard to the rotation of judges, as we've heard, this is probably within the jurisdiction of the Chief Judge in any event, but I think it's important -- and this is a carry-over from our other bill -- that we give the flexibility required to the people who are in fact presiding over our courts, that is, the judges, to ensure that justice is not delayed. We don't know where the additional family courts will be. If they're in smaller areas, there might be occasions where the list becomes intolerable, where justice is not moving quickly enough, and there could be those cases where another judge, who unfortunately may not have all the abilities we would require in family court work, could sit in family court.
I have great faith in our judges and I'm sure they'll rise to meet that challenge. Flexibility is important to ensure that justice is done.
The Vice-Chair: Any further questions from the government side? Mr Twohig, Ms Groen, thank you very much.
CHRISTINA MACNAUGHTON
The Vice-Chair: Next on the presenter's list is Christina MacNaughton, a lawyer with Lancaster, Mix and Welch. Good morning, Ms MacNaughton. You have 15 minutes to make a presentation. You can use all or part of it, and if there's any remainder we will have questions from the party members here. You can begin any time.
Ms Christina MacNaughton: Thank you, sir. The brief I wrote has been circulated, and I'll be saying a couple of things not in that brief this morning. Thank you for the opportunity to be here. I have been pleased to have my first experience of taking part as a citizen of this forum of the administration of the law.
I am a family law lawyer. I have been practising family law in the regional municipality of Niagara for over 20 years, and I am certified by the law society as a specialist in family law.
I'm here speaking in support of the bill overall in that it represents the extension and expansion of the family court as a unique court throughout the province, but I have a couple of suggestions for change, which actually have been alluded to by Ms Castrilli already this morning and by my friend Mr Kormos. I call him my friend because we're from the same judicial district. I practise in St Catharines and he used to practice in Welland, which is just down the road, the other county town.
I personally have been waiting with bated breath for the expansion of the unique family court across Ontario since 1977 when the pilot project, the Unified Family Court in Hamilton-Wentworth, was launched. That was the year I was called to the bar. It's been a long wait. I've got a lot more grey hair now than I had then.
What I have noticed in the 21 years of my practice is that in 1977 you could do family law as a lawyer as part of a generalized practice and not go terribly wrong as far as competence and service to the public was concerned. But family law over those 21 years has become infinitely more complex. Quite frankly, the non-specialized lawyers and with them, the non-specialized judges, are beginning to fail to keep up. This is not serving the public well. We have more family law disputes now than we did 21 years ago.
Every succeeding Stats Canada census tells us that we have a higher divorce rate, that we have more children living in single-parent families, often headed by women, often in poverty; that we have more couples deciding to live together without the benefit of being married. Those are nightmare cases, because that law evolves one little purpose at a time.
"What are my rights?" a client says as a common-law spouse. You always have to say, "It depends for what purpose you're asking me the question," because the answer isn't found in one place; it's found all over the place.
We're redefining what we mean by family. The Supreme Court is expected, within a week or so, to issue the decision in M v H, which will tackle the questions as to whether same-sex couples, who have lived for a period of time in a financially interdependent relationship, owe a duty of financial care to each other at the point that the relationship breaks down, if it does.
There has been constant, fundamental legislative change facing the courts and the family law lawyers in Ontario in the last 21 years. Since 1977, we have fundamentally rethought property division between spouses twice: once in the 1978 Family Law Reform Act, and again in 1986 with the fundamentally, yet again, different Family Law Act.
In 1978 we codified a number of things concerning children, including paternity issues, and codified what we expect the courts to think about in determining best interests of children in deciding which parent's house they will live in and how they'll be taken care of in the Children's Law Reform Act.
In the late 1970s, the official guardian's office, now the office of the children's lawyer, vastly expanded its role to give a voice to children in protection issues, where children's aid societies were seeking to remove them from their homes and in bitter custody disputes between their parents.
In 1985 the Young Offenders Act replaced the Juvenile Delinquents Act and changed the thinking modes around how we deal with young people who are in trouble.
The 1985 federal Divorce Act changed how we think about divorce and took another look at obligations of spousal support, child support, custody and access issues; and came to grips, as other statutes do, with how you try to meet the needs of separated families when the needs of the children change on a day-to-day basis. The only constant that faces a family, even a separated family or reconstituted family or restructured family, whatever you want to call it, is constant change. The system needs sensitive, specialized judges and lawyers in order to be aware of the myriad issues that are raised for families in that area.
We have had the reintroduction of federal, and now provincial, child support guidelines more recently. Every time any of these legislative concerns have come up, we've had to go back to the drawing boards. A specialized court is required to deal with it. The reason I'm concerned about the bill not providing for at least a certain level of education required for the judges -- I know the judiciary are independent, but by God, we owe the people of the province judges who know what they're doing. If you're going to be rotating people into the specialized court who don't normally practise there, for heaven's sake make sure they know what they're doing.
A good example of the kind of thing that happens with non-specialized judges is what happened when the Divorce Act of 1986 said that if you're going to come back after a time-limited support order and ask to have it varied after the time has run out or when the time's about to run out, you'd better have a causal connection between why you want to reinstitute that time-limited support order and the marriage and what went on in the marriage. Inexperienced judges who couldn't read the legislation in front of them started applying that causal connection idea to first instance approaches for support. That was never intended.
It took all the way down to the Moge decision in the Supreme Court of Canada to finally have Justice Claire L'Heureux-Dubé essentially say in her judgment -- it can be boiled down to, "The act says what the act says; don't take it further than it says."
Civil litigation and family law are fundamentally different. I will take it as read that you are aware of that. The concern I have as well is that a young offender matter is not a criminal matter so much as it is a family matter. I'm concerned that the matter of the YOA has been left to the Provincial Division, which will now be a specialized criminal bench. It's tempting to say, "Well, it's criminal, so it should go to a specialized criminal bench."
I spent some time in preparation for today talking to my colleagues in Niagara who do a lot of young offender work, which I myself do not do. They tell me that there is a qualitative difference in what happens in the YOA court when it is a provincial court criminal specialist judge sitting as opposed to a provincial court family specialist judge sitting. The family judges are much more context sensitive. They know and will understand and make some allowances for, in their search for a solution for this young person, whether that child is going through such things as that the family are drunks, the kid has been in and out of care with the children's aid society -- any number of factors get taken into account. They say that the family court judges have a far more sensitive understanding of what's available in the community to assist these kids.
The vast majority of kids who come before YOA court are there but once and you never see them again, either in YOA court or in adult court. The courts are probably kept busy with about 20% of the cases that come in front of them because those are the kids who are repeat offenders. But about 80% or so, my colleagues tell me, you see but once. They attribute a lot of that to the kind of way that the court is able to be more imaginative in how they are handled.
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I'm concerned that if you're going to be leaving the YOA behind, as it were, in the provincial court and not taking it to the expanded family court, then I would advocate that there be some provision made for the community resource and community liaison committee structure for that remnant court to provide them with the kind of awareness and level of education that the family court judges have been able to take for granted because of their wider experience and exposure in family law matters. What you're wanting to do is redeem those kids and turn them around; you're not wanting to consign them and say, "Here you are in the criminal court system and here you will remain."
I also wonder too about the clean slate principle. Kids are entitled to the principle that their juvenile record is left behind them when they get to be adults. But what if you had a kid who had engaged in a particularly spectacular prank that got him and his buddies in trouble? It wasn't anything criminal but it was in the nature of a prank that went wrong, but it's the kind of thing that becomes notorious in the folklore in the back corridors of the courthouse.
That child grows up and comes before that same judge or the judges of that same court as an adult with an offence. He's entitled to a clean slate. Judges are people. People remember things. He's not going to get quite the same consideration, I would submit, than if he was able to come completely anonymously with an absolutely clean slate to that court. There can't help but be some human carry-over.
Subsection 12(1) of the bill, "Composition of General Division": The thing that crossed my mind as I read the bill was wondering, if the family court is going to be expanded largely across the province, why there isn't also some provision for regional chief judges of that court. I recognize that it is a branch of the General Division, but it seems in the formula to only have definitely representation by one judge on the executive, namely, the senior judge of the family court. There's no guarantee in there that any part of the regional chief judges are going to be family court judges who will provide that kind of input to the sort of needs that that special court will have in sorting out the availability of services and so on in the various issues the judges determine when they are together.
I'll conclude my remarks there so that there may be a moment or two for questions.
The Vice-Chair: Thank you, Ms MacNaughton. We have four minutes remaining, roughly one minute and a bit for each caucus. We begin with Mr Kormos, of the NDP.
Mr Kormos: Very quickly: I appreciate your comments, obviously, about the judges who may or may not have exclusive jurisdiction over phase 1 YO. You raise an interesting point with the provision of regional senior judges in the final part of your submission.
We just dealt with Bill 68, the new Legal Aid Act, which talked about the capacity of the corporation to merge areas. Obviously, in Niagara I could see the writing on the wall, a merger of Niagara north and Niagara south --
Ms MacNaughton: It's already occurred, Mr Kormos.
Mr Kormos: -- in terms of legal aid, which would provide efficiencies. I don't quarrel with that. But I'm trying to explain to the government how in Niagara and many other parts of the province we don't have public transit, we don't have the access.
There's a plea out now for St Catharines to be the seat -- no quarrel -- for a Unified Family Court. Mind you, that leaves Niagara Falls out of the ballpark; I appreciate that. I'm wondering if you could comment on the need to have Unified Family Courts well distributed rather than centralized because of the problems, in Niagara alone, of access to the courts.
The Vice-Chair: I'm sorry, Ms MacNaughton and Mr Kormos, but he took so long to ask the question there's no time for the response.
Mr Kormos: When you answer the Tory comment, feel free to comment on that.
The Vice-Chair: Would the government like to ask a question?
Mr Martiniuk: How long do we have?
The Vice-Chair: Just over a minute.
Mr Martiniuk: Thank you very much for your presentation. I found it helpful. I do, however, have some concern about your comments regarding influences on judges. I come from a smaller city, in the region of Waterloo, the city of Cambridge. It was a sleepy small town when I first went there in 1970. Obviously, the judges are persons who are well read. They read the local press, they belong to the local clubs, and they hear many things.
I, unlike you, do not feel that these local influences would in any way influence their independence of mind. To say that they're human -- I'll acknowledge that. And they were lawyers. However, I think they train themselves to ensure that they are not influenced by these matters. Unlike you, I have more confidence in our judges to be independent in that respect.
Ms MacNaughton: By and large, I agree with you --
The Vice-Chair: Mr Martiniuk, you are afflicted with the same illness as Mr Kormos; you've used up all your time.
Ms Castrilli: Well, Chair, I learn fast. I'm not going to make the same mistake.
I have a lot of questions, but I'll ask you one in particular about the last point you made, which you didn't have a whole lot of time to expand on; that is, your fear that we may not be moving towards a truly expanded family court if we're not providing some assistance to the regional Chief Justice. Could you just elaborate on that a little bit?
Ms MacNaughton: Having one person designated essentially as the representative of the family court only on that body, visibly designated, indicates to me that the government is perhaps not serious in really expanding it across the province, because at that point, if it's really expanded across the province, there will be a lot of judges who are specialized and only have one person to carry their concerns.
Ms Castrilli: Thank you. Your comments were very thoughtful.
Ms MacNaughton: Thank you. By the way, I agree on the whole with what Mr Martiniuk says, but there are always, in the non-specialized courts particularly, judges who don't care to be there doing that subject matter and who in fact don't do it well. They are not the majority of judges by any means, but there are some. They do not serve the public in all subject matter equally well.
The Vice-Chair: Thank you, Ms MacNaughton.
JOHN BLACK
The Vice-Chair: Our next presenter is John Black with Stuart, Cruickshank. Mr Black, good morning. Welcome.
Mr John Black: Good morning, Chair. Good morning, members of the committee.
The Vice-Chair: You have 15 minutes for your presentation. You can use all or part of it in your presentation. If there's anything left over, the members of the three caucuses might ask you some questions.
Mr Black: Thank you. My submission will be fairly brief. I don't have any handouts for the committee, and likely my submissions will not require a reading text in any event.
I am here in my personal capacity, but I'm also president of the Muskoka Law Association and central-east council member for the Canadian Bar Association -- Ontario. My practice has revolved around general litigation since my call in 1991 and I've practised ostensibly in Muskoka since my call. I've practised with an emphasis in family law, and general litigation and also some criminal defence work involving young offenders. I've made numerous appearances in both Ontario Courts, the General and Provincial Divisions.
Presently in the district of Muskoka there's no Unified Family Court so there are two tiers, Ontario Court (Provincial Division) and Ontario Court (General Division). The closest Ontario Court (General Division) family court is in the county of Simcoe, to our south.
With respect to the amendments to the Courts of Justice Act, I submit that the amendments are fairly minor in nature. I've canvassed the amendments with some of the members of my association, and from what I can glean from those conversations, certainly members of the Muskoka Law Association are very much in favour of the Unified Family Court coming to our district. Presently the split jurisdiction, as you've likely heard from the previous speaker, adds expense and delay and aggravates the personal circumstances that litigants find themselves in, particularly at a difficult time when family separation and issues relating to custody of children, child support and so forth are in dispute.
The expense that litigants incur in a split jurisdiction forum is self-evident; often I'll find parties in the Ontario Court (Provincial Division) asking for custody of children, child support, perhaps spousal support, but also asking for exclusive possession of the matrimonial home, equalization under the Family Law Act, and matters that only the General Division can handle. These items are obviously of concern to the committee.
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What happens is that some matters may be dealt with in the Provincial Division and other matters deferred to the litigants to be dealt with by way of separation agreement or an application to the General Division. A lot of people in the Provincial Division in our jurisdiction apply to the Provincial Court themselves; they prepare their own forms, and one or two appearances later, the duty counsel has met with them and they find out after a month or two that some of the issues that are very important to them cannot be dealt with in that forum. Then another few more months elapse and then you have a status quo created because of the passage of time, which can often be very prejudicial to the parties' interests, especially when it relates to exclusive possession or custody.
Those issues are very real issues, and you often find problems with jurisdiction where private litigants will come and try to vary terms of custody or child support which had been dealt with previously in the General Division by either divorce judgement or General Division order. So it's a jurisdictional problem.
My experience has been that Provincial Court, depending on the judge hearing the matter, may deal with the matter despite the jurisdictional element, and it may be dealt with in error. To avoid this type of problem, UFC is welcomed in Muskoka and we are all in favour of the expansion northward; the proviso being that if UFC does come to Muskoka that there be regular sittings of the court. Presently the sporadic General Division motion dates -- although they're somewhat regular, but they are scattered -- can lead to problems because of a number of matters heard on one day and certain family issues not being dealt with adequately. There has to be regular meetings of the court because timeliness is very important to family law dispute resolution.
Another advantage to the UFC, of course, is the specialization, the fact that the bench will be well acquainted with family law issues and the case law, which is ever-changing.
So consistency, timeliness and the full service of the UFC is a definite advantage, and we're all in favour of that expansion throughout the province. If this amendment to the Courts of Justice Act facilitates that expansion, we're all in favour of it.
The amendments to Bill 48 that I think are the more important ones relate to the ability of the Chief Justice to rotate judges, presumably in and out of the UFC, as that Chief Justice decides. Unlike the previous speaker, I trust in the discretion afforded to the Chief Justice and to the individual justices hearing matters to be sensitive to the fact that the UFC requires a certain degree of specialization. I personally don't have a problem with the discretion afforded by these amendments to the Chief Justice to move justices among the divisions. Consistency, of course, is very important, particularly in the family law context, so that the development of case law is done in an orderly fashion and so that justice is meted out to the litigants.
As an aside, George Beatty at my office recently was appointed to the Provincial Division in Bracebridge. I commend the Ministry of the Attorney General and others for his appointment. If I may make a plug for him at this moment, he'd make a wonderful UFC justice for Bracebridge. I'll leave that as it stands.
Mr Kormos: Another 25 grand a year for that.
Mr Black: Well, I'm sure Mr Beatty would be in favour of it.
Mr Kormos: And the pension fund makes the federal MPs' pension fund look pale in comparison.
Mr Black: As to the Young Offenders Act matters in Bill 48, I've again spoken to certain members who practise in defending young offenders in Muskoka and I also do criminal defence work involving young offenders. My experience has been that although, as the previous speaker indicated, there seems to be sensitivity of family court judges in the Provincial Division to deal with young offenders and afford them the proper emphasis towards rehabilitation, as envisaged by the Young Offenders Act, the nature of a criminal process is very distinct from the family law forum. People I've spoken to, anyway, believe that the young offenders are properly dealt with in the Ontario Court (Provincial Division) for that reason. Obviously, there's some overlapping in certain cases, where you have a young offender who is in need of protection. However, there could be a parallel proceeding under the Child and Family Services Act if that is the case.
As the previous speaker indicated, there is concern about the sensitivity of the provincial court judges, particularly ones who do adult criminal matters, to the nature of the YOA, to the Young Offenders Act. There have been cases where, in my experience, the bench has dealt with young offenders in a rather maximum way, if I can use that term. I think those concerns can be allayed by, simply, education of the bench and dealt with in that manner. There's a caveat here; we don't have a UFC, so I don't have any exposure to how young offenders are dealt with in a Unified Family Court format.
Those, essentially, are my submissions. I welcome any questions.
The Vice-Chair: Thank you, Mr Black. We have six minutes left for questions, roughly two minutes per caucus. We'll begin with the government caucus.
Mr Toni Skarica (Wentworth North): I'm from Hamilton and we've had a UFC there for 10 years. I found interesting your comments regarding YOA matters. What I found was that the UFC judges were very familiar with family law, but when you move into YOA cases you're dealing with case law, evidence and so on and so forth that really relate to the criminal area, and the Provincial Court judges on the criminal side, because they were basically living that law day to day, particularly the charter when the charter came in, were better suited to deal with those.
Mr Black: I'd agree with that. We're dealing with two different types of legislation: one is family law; the other is criminal. You're right. The issues regarding charter applications, the admission of certain evidence, and the different burdens of proof as well, beyond a reasonable doubt versus balanced probabilities -- they're two very different streams of the judicial system. The Provincial Division judges who hear matters involving adult offenders have a better background to deal with those very important issues to ensure that the young offenders' rights are protected. If you have a family court judge who is not dealing with criminal matters, matters of the Criminal Code, the Young Offenders Act, on a regular basis, there's a possibility that that judge's rulings may be rather uninformed, perhaps.
Mr Skarica: My experience was that the judges -- there was no problem once they had the law, but it was just more efficient through the provincial.
Mr Black: Yes, that's fair comment. I'm not slighting the judiciary; I'm sure they're very capable. However, from a matter of procedure and for adjudication, I think the two should be separate streams.
Ms Castrilli: I just want to address one issue. I thank you for being here today. I think you agree with that to accomplish the goal of the justice system in family court, we need individuals who are experienced and who are sensitive.
It may interest you to know that the judicial appointments committee reported at the end of last year that the appointments that have been made over the last three and a half years are quite telling. The Attorney General has only appointed seven women, one francophone, no aboriginals -- no only else other than white males. I worry about that, because that too is important in how we deliver family law. We know that in family law court there are many, many women involved; that we're not all white, Anglo-Saxon males. I'd just be interested, from a practitioner's point of view, in what you think about that. What do you think we need?
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Mr Black: I don't have a problem with white males sitting on the bench, frankly. Well, no. Fair comment, and I think representation's important on the bench. My experience has not been that I've seen cases decided with any form of bias. Provided the appointment of judges continues to be on the merits of that judge, be it any gender or race or ethnicity, I think proper adjudication will be accomplished. I don't have a problem.
Mr Kormos: Mr Black, had you not qualified your response to Ms Castrilli, your response might have acquired those folkloric proportions that Ms MacNaughton spoke about that some crimes achieve in the hallways of courtrooms.
Obviously, I'm interested in and Ms MacNaughton raised and you addressed the issue of exclusivity of family court judges over the phase 1 YO matters. I hear Mr Skarica and I don't disagree, because I suppose if I were a defence lawyer by and large I'd want to run my trial, if it were a not-guilty plea, before a criminal court judge. But when it came to sentencing, in view of the fact that the YO is more treatment- and rehab-focused as compared to the Criminal Code, then I'd want a family judge. Do you understand what I'm saying? But that's one of the problems of the whole YOA: It uses a criminal model, yet its stated focus is treatment and rehabilitation, and in the criminal model treatment and rehabilitation are not congruous.
Mr Black: I think that if defence counsel were to refer to the provisions of the Young Offender Act, emphasize those in submissions with regard to disposition, and used case law in submitting a proper disposition there --
Mr Kormos: I hear you, but Ms MacNaughton also spoke about specialization and how difficult it is now. I appreciate that she was speaking about family law. My sense is that a family court judge who has dealt, so far, exclusively with YO phase 1 has a greater understanding of what's going on in treatment facilities, what's out there and so on. You can't really expect judges to be all things to all people, which also goes to the issue of rotation and whether there should be some constraints on the Chief Judge -- we know there can't be --in terms of who he or she rotates into the Unified Family Court.
Mr Black: Obviously, the Chief Justice will have to be sensitive to those issues and will have to use his or her discretion to move the proper justice into the UFC or out of the UFC. I don't know exactly what your question is.
Mr Kormos: I'm looking to see whether you have some concerns that other people have about these issues.
Mr Black: No. As I indicated in my submissions, I trust in the discretion of the Chief Justice to make the appropriate rotation and I trust in the judiciary to be sensitive to this issue.
Mr Kormos: Do you want this Hansard sent up to the Chief Justice? It might serve you well at some point.
The Vice-Chair: Thank you, Mr Kormos. Thank you, Mr Black, for your presentation.
JUSTICE FOR CHILDREN AND YOUTH
The Vice-Chair: We'll now move to our next presenter, Sheena Scott, executive director for Justice for Children and Youth. Good morning, Ms Scott. You have 20 minutes for your presentation. You can use any or all of it; if there's any left over, the various caucuses will have questions.
Ms Sheena Scott: Good morning. I'm Sheena Scott. I'm a lawyer with Justice for Children and Youth and the executive director. I've been practising both family law and young offenders law for children and youth for more than 10 years. Not surprisingly, I'm here to address the issue that was just addressed, specifically the jurisdiction of the family court versus the Provincial Court (Criminal Division).
We have some very serious concerns about taking the now concurrent jurisdiction of the family court in young offenders matters away from the family court and investing that jurisdiction solely with the criminal courts with respect to all young offenders. As you know, now the Provincial Court (Criminal Division) deals with the 16- and 17-year-olds, and in my experience, there is quite disparate treatment in primarily disposition, as you indicated, in terms of the two different streams and in terms of basic understanding of what kind of resources are out there for young people, what kind of, again as you said, treatment centres, what kind of supports within the community exist. The caseload of the criminal justices is so primarily adult-focused that what they know are the adult systems, the adult support systems, the bail program etc, things that don't necessarily apply to young offenders.
There's been discussion about the difference procedurally between family law and criminal law. Yes, absolutely the criminal courts understand criminal law better, but the Young Offenders Act is unto itself, and the criminal court judges sometimes aren't as familiar with the Young Offenders Act as perhaps they should be. This of course speaks to training issues across the board.
What we've found is that the two-hatters, those who sit on family and young offender matters, are by far the most aware of what's going on. I've been in court countless times where the parent is having the young person charged for something -- I'll give you an example: taking $20 from the cookie jar or something -- and the family court two-hatter, who also sits on the young offenders matters, will be able to sit there and say: "Wait a minute. If you guys have a problem, sort it out. This doesn't belong in our criminal justice system. This is really a waste of everyone's time and money." And the matter's adjourned and then it's resolved. But I can bet you that if that same case is dealt with in the criminal division, that sensitivity, that awareness and that type of resolution isn't going to occur.
I have a question for you and I don't know the answer; that is, what is the rationale for family court no longer having jurisdiction? In terms of the charter, in terms of other issues, I have faith that the family court can figure it out. They've used it in other contexts. That is not as much a concern to me. Certainly in terms of criminal procedure, for those family court judges who aren't familiar with it, yes, there may have to be some training, but the real focus is on the Young Offenders Act, and both sides need more training.
Another option would be to have a specialized youth court. I don't know if that's one that's ever been addressed or raised, in which you have judges -- and there are judges out there who may have been doing family who may not want to go to the Unified Family Court, who may want to continue to do young offenders matters. It may be appropriate to have a specialized youth court and then we could address everyone's concerns.
Again, not knowing the rationale -- if it's to save money, it's obviously not going to save the provinces any money, because they're going to be doing now all the administration of justice on the young offender matters. It's federal legislation, but the federal government is not going to be responsible for it. So if it's to save money, I make that point to you.
I'm just not sure of what kind of analysis has gone into the decision, so really I'd like to know. If the section is repealed and the jurisdiction taken from the family court, I would just emphasize that there has to be more education all around.
The Vice-Chair: Thank you. We have 10 minutes remaining, which is about three and a half minutes per caucus, beginning with the Liberals.
Ms Castrilli: Thanks very much, Sheena. I think the record of your organization in dealing with young offenders is clear and obviously an excellent one.
I'm almost tempted to give up some of my time to the Conservative government so they can answer your question, but they're going to have their three and a half minutes and hopefully you can press them when it comes to their turn.
In your experience, does the concurrent jurisdiction which now exists have any downside?
Ms Scott: Not for the young people who are dealt with under the concurrent jurisdiction, no. For the 16-year-olds and 17-year-olds it may have a downside in that they're being dealt with in the criminal process. That split is problematic, because they have some of the same problems as some of the younger people; some of their problems are really family-related matters at the root. For me, that is the only issue in the current situation.
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Ms Castrilli: In your view, what is the difference between the two in terms of the sentence, in terms of treatment?
Ms Scott: In the current system the criminal courts are very full, very adult-oriented. Everyone thinks young offenders get off lightly. They don't, not in either stream; in either stream, they tend to get more than what an adult would get for a particular crime. But what I find is that the dispositions are more connected to the young person and to the goals of the Young Offenders Act under the family court system than under the criminal court system. I'm not saying they're all bad, because they're not. In terms of process and criminal law expertise and charter expertise, I haven't had a problem with a family court judge in that area. Maybe other people have, but I certainly haven't.
Ms Castrilli: In your experience, how does our system compare with jurisdictions where the young offenders are dealt with solely under the criminal system?
Ms Scott: I can't give that analysis. The fact of the matter is that a lot of it depends on the judge you get. You may have a judge who happens to be Provincial Court criminal judge who used to be a defence counsel for young offenders who may be doing a wonderful job. I am making generalizations, but I think what we have is a process in which the court is willing to step back and say: "Wait a minute. Is this criminal? Is this something we need to waste the time and resources of this system with, or is this a family matter and can we deal with it?" That's the advantage that we have on the family side.
Ms Castrilli: So it's down to expertise, sensitivity and good common sense.
Ms Scott: Exactly.
Mr Kormos: Obviously, this is one of the themes that's appearing in the course of consultations regarding Bill 48. I get back to what we started with this morning with Ms MacNaughton and then with the last submitter and the response of Mr Skarica. I'm presuming or supposing that maybe the real conflict here -- and this isn't always the case -- is that in a criminal court the overriding principle in sentencing is tariff sentencing, whereas in a YO court it should be, I presume, more tailored sentencing.
I just note this most recent publication of Youth Update, in part by the Institute for the Study of Antisocial Behaviour in Youth. A recent study in Toronto, published in 1998, showed that 63.3% of incarcerated adolescents had two or more psychiatric disorders. Just incredible data. Substance abuse: marijuana 69.4%, but perhaps more alarmingly, for 57.1% of incarcerated YOs, street drugs: cocaine, crack, speed, LSD or PCP. The incidence of alcoholism, the incidence of depression -- the data in this study are incredibly shocking. I'm not saying it wouldn't be replicated in an adult study, but it's very shocking in terms of the very special needs of YOs, of young offenders.
Ms Scott: I can also add that most of my clients I've ever had and the clients of my organization have some kind of learning or educational disability. I'm hazarding a guess, but I would say 90%. That's a real concern as well, because in the criminal stream you're not going to necessarily have the sensitivity or the awareness as to that.
Another concern which I didn't raise is that when you're having both the younger and the older youth now housed in holding cells of the one court, you're going to then have some of the younger youth at risk as well, which is a concern.
Mr Kormos: The other comment this article makes is the renewed emphasis on punishment -- the get-tough, boot camp, "we'll straighten these punks out" approach -- as compared to a treatment model, in view of what they found vis-à-vis the level of psychiatric disorders, the frequency of psychiatric disorders. They don't draw the conclusions but simply state the facts. There are some pretty frightening conclusions, then, to be drawn about the mere get-tough approach and whether it's going to be effective at all in addressing -- I wonder if it merely aggravates some of these disorders and leaves kids who are more disturbed.
Ms Scott: It may certainly do so. However, regardless of which stream they're in, the act is the same. What we don't want now are a lot of appeals from -- you know, when the 12-year-old has had a harsher sentence from an adult-oriented judge. Are we going to now be tying up the appeal courts or are we going to be educating judges?
Mr Martiniuk: Thank you very much, Ms Scott, for your presentation here today. I should advise you, if you were not aware, that we presently have five Unified Family Courts, only two of which do take jurisdiction for young offenders, and in both cases, in London and Kingston, the judges have decided to phase them out early next year.
As a government we have to rely upon the expertise of the people involved, especially in our court system. I'd like to read to you two excerpts of letters directed to the Attorney General. The first is dated November 26, 1997, on the letterhead of the Honourable Patrick J. LeSage, Chief Justice of the Ontario Court of Justice:
"Further to the meeting of the heads of court today, I want to take this opportunity to confirm my view, previously stated in a letter to you dated July 3, 1997, that Young Offenders Act matters should be within the exclusive jurisdiction of the Provincial Division."
The second excerpt I'd like to read to you is from the Honourable Sidney B. Linden, Chief Judge of Ontario Court of Justice (Provincial Division), dated November 27, 1997, and also directed to Mr Harnick:
"I am writing to confirm the discussion at the heads of court meeting held this morning during which there was agreement among all present that the amendment to the Courts of Justice Act to accommodate the planned expansion of the (Unified) Family Court should remove concurrent young offender jurisdiction between the Provincial Division and the General Division," which is what we've done.
Are you a solicitor or a lawyer?
Ms Scott: Yes.
Mr Martiniuk: So we have basically the two chief justices of our two court systems in Ontario, in their opinion saying we should move it out of the Unified Family Court, and you disagree. Could you possibly tell me why?
Ms Scott: I would like to know their reasons. Unfortunately, the justices haven't indicated their rationale, and that kind of leaves me in the dark because I can't respond. If, for example, it's because, "Oh, we don't want those kids in jeans in the hall" or "They might be disruptive," in my experience the only time security has ever had to be called is in a family court matter. I would like to know their reasons. No disrespect, but I would like to know the reasons.
I'm also curious in terms of some of the other judges, the two-hatters, who do specialize. If a pool were taken of judges, would we find judges who would like to maybe be involved in my alternative suggestion, the specialized youth court? That is something that wasn't addressed by the justices.
Ms Castrilli: On a point of order, Chair: If Mr Martiniuk is finished --
The Vice-Chair: You can use a little bit of his time. Sure you can.
Ms Castrilli: No, I don't want to cut into his time. If he has more questions, I can wait until the end.
Mr Martiniuk: No, I'm done.
Ms Castrilli: Chair, I wonder if Mr Martiniuk would make available to the committee the full text of the letters he read, since they obviously have great bearing on the discussions we're having here today.
The Vice-Chair: Mr Martiniuk, would you give that to the clerk?
Mr Martiniuk: Yes.
The Vice-Chair: Thank you very much.
Mr Kormos: On a point of order, Chair: I'm very disturbed by the parliamentary assistant for the Attorney General's comments. He creates the clear impression that all the consulting the government has wanted to do has been done, which indicates that this process today is of no relevance. The PA suggests that this is the consultation, this is the determination, and anybody who comes here is chopped liver unless they happen to agree with the bill. I find that a matter of great concern, that the PA would treat this process with disdain. People travelled some distance and went to great trouble to be here. The first submission --
The Vice-Chair: Mr Kormos, I don't think this is a point of order. However, it is a point of privilege. Nevertheless, I --
Mr Kormos: It's a matter of great concern.
The Vice-Chair: It is your interpretation and I understand your concern very much. I personally didn't get that impression from Mr Martiniuk.
Mr Kormos: It's not yours to get or not to get, because you're merely the Chair.
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Mr Martiniuk: Mr Chair, it certainly is mine. Mr Kormos again has made an unsubstantiated allegation, which is his manner, that I treat this committee process with disdain. I can assure you, Mr Kormos, that I have never acted in any way that would indicate my disdain for this process. I happen to believe in this process very fervently. For you to make that allegation, I take that as a personal affront.
Mr Kormos: Well, God bless, because it was meant as one.
Mr Martiniuk: Certain things are business, but this is not business; you have personally attacked me --
Mr Kormos: You bet your boots.
Mr Martiniuk: Mr Kormos, you continue to act in an unparliamentary manner.
Mr Kormos: I'll do it here, I'll do it out there.
Mr Martiniuk: You go right ahead.
Mr Kormos: You don't want to hear what these people have to say. You only want to hear them if they agree with you.
Mr Martiniuk: How dare you. How dare you.
Mr Kormos: I just did.
The Vice-Chair: Mr Kormos and Mr Martiniuk, I think we're into something that is not in the realm of this committee and I personally would like to move on to the next presenter. Ms Scott, thank you very much for your presentation. I, as the Chair of the committee, want to hear the next presenter.
CHERI STRATHDEE
The Vice-Chair: Ms Strathdee, welcome to the committee. You have 15 minutes in which to make your presentation. You can use all or a part of it. If there is any time remaining, it will up to the members of caucuses if they wish to ask any questions. You can begin any time.
Ms Cheri Strathdee: OK. One of the things I hope for is that, number one, I'll be listened to, and number two, that I will be believed. In order to accomplish that, I want everybody to know that I'm a published author. I was a journalist until I was crippled. I have in the package letters of recommendation and some examples of the incidents I'm talking about. I have others as well. I've kept a journal that can be searched by word or by subject. Plus, I've taped all the conversations that have occurred between lawyers and whoever from a journalistic point of view since 1991.
The reason I'm here today is to address the courts of justice. It's because I've not been granted my basic rights under the law, namely, due process of law. Additionally, my human rights as guaranteed by the Constitution have also been violated. My safety and security have been violated by my former spouse. The police, when I sought help, and seven lawyers, as I sought legal relief, did nothing. The results of abuse I've suffered in my home, as well as those institutions that are paid to protect the rights of Canadian citizens, are as follows.
Before I met my former spouse, I was very active. I spent my 20s getting my grade 13 and won and Ontario scholarship. I'd lost both my parents when I was 15, and I managed to pull myself out of it. I met my former spouse when I was in my 30s. I had a career, a future, a pension, a three-bedroom condo, fully furnished with high-quality furniture, a car and two fur coats.
My ex had a career also with a future. He lived in his mother's basement. He had few and old pieces of furniture. He had an older car. His first attempt at buying a house failed, as he sold it at a loss two weeks after he purchased it.
We bought our first house, using my expertise as a real estate agent, and paid if off in seven years. I contributed financially, using every cent I made to keep the house running, and gardening, canning, coupon clipping, haircuts, sewing, car repairs and decorating were among some of the things I did to keep expenses down. I also paid for a cleaning service while I attended the University of Toronto. My ex put his money in various forms of investments and pensions and only contributed $35 a week for total household expenses.
The same money, saving and contributions were made by myself when we purchased our second home. Additionally, I was forced to sell my condo, but was not allowed to keep the money for myself even though I had acquired it before I met my ex. Additionally, I won approximately $100,000 in contests, including two cars. I was defrauded of the Bronco by my ex. That letter states that I won the car. I also won $25,000 cash from Beaver Lumber, which was used entirely to pay off the mortgage of the second house. I also won a Caribbean cruise for my spouse's aging parents, when their own children would not respond to sending them on a trip. They were 74 by that time.
When my ex became enraged by them receiving the trip, the abuse from the ex became pronounced and extreme. He'd been having affairs throughout the term of being married, but now the verbal abuse turned violent. When IBM started downsizing, my ex's diagnosed obsessive-compulsive behaviour and panic attacks became worse. He would jump me without warning and punch me and then run upstairs. Another favourite was to twist my arm that had been previously broken. He threatened me with knives, carved a bat out of solid oak, tripped me and began following me when I sought relief from his torture.
When I was finally hospitalized with a deep vein thrombosis, from when he kicked me in the leg, I went to the police station to get him charged, hoping it would wake him up so he would have to get the psychiatric help he needed. The police did nothing. The attacks continued until I was permanently injured with a herniated disk. I was in constant pain from severe, acute and chronic injuries that resulted from my ex's abuse. Then I was diagnosed with secondary fibromyalgia, the result of my injuries from abuse. I was unable to get out of bed, sit or walk for any length of time.
While hospitalized, then crippled, my ex went to court to get petition of sale of the matrimonial home, although the home was not built according to Ontario building code. Because I was so sick and in pain, the first legal aid lawyer said I was stupid and would be easy to get rid of. I got that on tape. I fired him. The second legal aid lawyer at the time of the court date was not the lawyer of record. I was not allowed in the court to defend myself, although I was technically representing myself. I wanted to explain to the judge that the house wasn't built according to Ontario building code standards so they couldn't sell it and perpetrate a fraud on the courts and the new purchaser.
This lawyer quit a few months later because he could not handle the crazy-making demands of my ex. That letter is included in this package. The third lawyer accepted legal aid, then changed his mind. He screamed at me about my financial planner. I have that telephone conversation taped. He charged me for unprovided service during discoveries that did not happen. He changed the wording of the order to go limiting my support without my consent or knowledge. Then he wouldn't release my files when I fired him. There are many other violations as well.
Lawyer number four was embroiled in his own separation and bad judgment of buying an over-priced property and took his hate out on me. He agreed to go to Small Claims Court to get my files from the previous lawyer and then he sent his secretary instead. He took my emergency moving fund, which was held in a separate account for that purpose when I was forced to vacate the premise I was living in. He would not advise me of my legal rights. In fact, he wouldn't talk to me at all. There were many more things he did wrong as well.
Both lawyers five and seven accepted my legal aid certificate and then sat on it while doing nothing and demanding that I give them a retainer instead.
Lawyer number five also sabotaged my motion, which I prepared myself, by saying he would take it over when it went to court. That's this document. I took it to him because I wanted to make sure I'd done it right. He said it was right, it was correct, everything was factual, that I had done it perfectly and he would represent me in court. Then what happened is that he didn't confirm the court date and he didn't show up for court, so nothing happened.
I've been defrauded of approximately $65,000 by these unscrupulous lawyers who did not deliver what I and the legal aid plan paid for. I have had to use all the balance of the proceeds of the matrimonial home, because my spouse quit his job so he did not have to support me. At that time I was told I could no longer attend computer courses that were free at a local high school because my arm could not take any more than two courses without swelling and becoming so painful that I couldn't walk.
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When my ex quit his job, he took all our assets. They were around $600,000 at the time. Then he was granted a government grant of $4,500 for him to take an Oracle computer course. He has since taken another job at $70,000 and has presently over $1 million. On the other hand, I'm crippled for life, in constant pain. I've lost my home, my car, my furs, my pension. I can't get medical insurance because I'm too sick. I can't go out for any length of time because of the pain. I've lost many skills and activities I used to do. As I found what I couldn't do, I listed them.
As a result of all the above, I'm seeking the help of the courts of justice for what has happened to me. I don't believe the Legal Aid Act and its provisions protects the rights of women and children. There is no accountability of the lawyers who accept legal aid certificates. There's no follow-up when a complaint is made and there's no schedule of support for spouses, especially those who have been abused and are unable to work. A schedule similar to that for child support should be incorporated into the courts of justice, if that's the applicable place for it.
Upon application to the courts for separation and divorce, the assets, especially the home, pensions and investments, should be frozen until an equitable split has been determined. If these steps are not incorporated, then the government will have to continue to pay an abusive man's responsibilities. As the baby boomers age, the government is afraid that there will not be enough pension money for all of that segment as the population expands. At the same time, the number of abused, crippled women will also continue to expand. The government, by not adopting those tough policies on wife abuse, is ensuring financial losses to society via lost income taxes and all the costs associated with the rehabilitation of abuse victims. These savings also could be passed down to the taxpayers.
My last statement is, how does it feel to pay for another man's responsibilities? Because that's what everybody here is doing in their income taxes.
I have tried to seek other help as well. As shown in the last piece of my fact sheet, I wrote to the legal aid and the law society about lawyers number one and number four in particular, receiving a reply that the complaint was not valid and that those lawyers denied any wrongdoing. Help and further investigation were denied.
In 1995, I wrote to the Women's Legal Education and Action Fund. There was no help because it wasn't a precedent-setting case. Everybody was having this problem.
In 1996, I wrote a full report describing the fraud of the Bronco. I took it to the police and was treated very badly. I insisted on seeing the police from the fraud squad. The officer took the report and to date has not contacted me or dealt with the matter. I waited that long to contact the police because I believed the lawyers would settle the matter of the ownership of the Bronco.
In 1996, the police were unwilling to help with items stolen by my ex-landlord. I lost $4,000 of $17,000 worth of belongings. I had these things inventoried because my other half is obsessive-compulsive. He photographed everything and wrote it all down.
I also wrote to the minister responsible for women's affairs and was told they could not help. They sent the letter to the Attorney General's office and the Solicitor General's office. Both replied saying they couldn't help.
I've also called various other agencies to get help: legal, medical, financial or housing. All that was done was that I was referred on to other agencies and told there was no help available.
Now I'm facing a life of -- I worked hard to try and stay off the streets, to get myself an education, to get myself into a position where I would be a contributing member of society. Because of being beaten up and then having these people, whom you guys are paying to service the public, not do their job, now I'm crippled for life. I'm going to be around for another 30 years, and with every step I take, I'm going to remember who beat me up, who helped me and what happened. That's all I have to say.
The Vice-Chair: Thank you, Ms Strathdee. We have one and a half minutes remaining, which doesn't allow for much. Does one member of one the caucuses wish to make a comment?
Mr Kormos: In one and a half minutes, very quickly: Who's Delores Hill?
Ms Strathdee: That's my maiden name. My name is Cheri Delores Marie Hill Strathdee, but it was too big to put it all in.
Mr Kormos: Fair enough. You've got letters here from Laitman, a sole practitioner who took your file in July and then in September dumped it.
Ms Strathdee: Yes.
Mr Kormos: Here's a guy who complains that he's a sole practitioner and can't handle your case --
Ms Strathdee: That's right.
Mr Kormos: But he's got two offices, one in Toronto and one in Stouffville.
Ms Strathdee: Yes.
Mr Kormos: You complained about him?
Ms Strathdee: Yes.
Mr Kormos: What did the law society do?
Ms Strathdee: Nothing.
Mr Kormos: They dismissed your complaint?
Ms Strathdee: Yes. The thing is, for instance, the $5,000 that was taken from --
Mr Kormos: No, no, no. I just find it interesting. He took the file on. He says he's a sole practitioner and can't handle it, but he has two offices. I just find that interesting.
Ms Strathdee: I can prove the $5,000 was taken by bank statements that I --
Mr Kormos: You've been jerked around from day one. I have no hesitation in saying that to you. The problem is that you've got to find somebody in a law office who's going to wrap it up and complete it for you. Is that a fair comment?
Ms Strathdee: I hope somebody will. One of the reasons why this here says on the top, "abstract first draft" -- this here has more details. I have the tapes to back up what I'm saying, plus full documentation that I can find at an instant. Because I've been stuck in bed, for years I've been inputting the data in the computer when I can manage it, so I have all the letters and everything documented. I have been offered the chance of possibly putting this into book form about the abuse in the home and the abuse of the system afterwards.
Mr Kormos: Ms Strathdee, Mr Martiniuk is the parliamentary assistant to the Attorney General. If you wait and see him at 11:50 when the committee recesses, he's second banana to the top dog in the province. He may be able to help you with counsel. I suggest you talk to him.
The Vice-Chair: Thank you, Mr Kormos. Thank you, Ms Strathdee. We must move on to the next presenter.
Ms Strathdee: Thank you very much for listening to me.
CANADIAN BAR ASSOCIATION, ONTARIO
The Vice-Chair: The next presenters are Judith Huddart and Joanne Stewart. Welcome, ladies. You have 15 minutes for your presentation. You can use all or part of it; if there's any time remaining, the members of caucus will ask questions.
Ms Judith Huddart: Thank you. I don't think we're going to make a lengthy submission. I'm Judith Huddart. I'm the chair of the Canadian Bar Association -- Ontario, family law section. Joanne is on the executive of that association and has given Bill 48 a thorough review. It seems to us to be more or less administrative in nature, but I did want to say that it's important to our section that the unification of the family courts continue, so we're supportive of this bill, which allows that to happen.
We get a lot of feedback from our members, the family law lawyers. We also get feedback from the public. It's amazing how many phone calls I get from people concerned about the court system. It seems to me that proceeding with the unification of the family law courts can only help: can help our clients, can help those people who are unrepresented. It's one-stop shopping, which is much better than what we have now, where people can start an action in provincial court and then the other spouse can come along and start a divorce proceeding and all of a sudden you're bumped up to General Division. You've got one action started and all of a sudden you're into another one and the first one goes by the board. So that's important.
It's also important to recognize the facilities that have been put in place in family courts. There are mediation facilities which aren't normally available in General Division court. There is more access to the legal aid duty counsel. Duty counsel is not available at all in General Division. It is available in Provincial Division. There is case management which has been set up, which means that normally you have one judge who keeps track of your file and often hears the case from beginning to end. Sometimes that does switch, but I think that also allows somebody to have a handle on what's happening, so if a spouse is abusing the system there's a better chance that that judge is going to see that and be able to deal with it, rather than shopping around; then different judges get it and all of a sudden it's a whole different story and the history of it isn't there before the judge.
There are a lot of plus things that we think can happen through a Unified Family Court, and on that basis we are here to support it.
I don't know if I've missed anything, Joanne. Joanne will answer questions as well.
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Ms Joanne Stewart: I think there are only two more things. One is that in terms of the provincial court and the Unified Family Court, the clerical service that's available to the general public is far more helpful many times than what's available in the General Division. If the family court takes on some of the provincial court and Unified Family Court clerical people and that kind of service, it would help a lot of the public, because now there are many unrepresented litigants for lots of reasons. The main one is money. That benefit from the provincial court and Unified Family Court could carry over.
Also, I notice that in terms of Bill 48, the judges are rotating in and out, as they do now in the General Division. I think that's a two-edged sword. On the one hand, it's good to have fresh blood; on the other hand, in the Unified Family Court and provincial court, family division, the judges are there because they want to be. They understand the law, the interpretation of the law, the issues; they're prepared to deal with the client.
In the family court -- while the rotation system is a good one because the judges seem to need breathers from family law, on the other hand I think it would be difficult for the public if judges are put into that system when they don't want to be there. From the public's perspective, if the judge is not interested, what the people get and the lawyers get is hands up and that's the end of it. The rotation is good, but I don't know if you can word it so there's a mandate so only those who really want to go have to go.
That finishes our comments in terms of the CBAO.
The Vice-Chair: Thank you for your presentation. We have 11 minutes left, three and a half minutes per caucus. We'll begin with the government caucus.
Mr Martiniuk: In regard to the background, you both practise in Toronto?
Ms Huddart: That's correct.
Ms Stewart: I do.
Ms Huddart: The members of our executive and our association of course are throughout Ontario, but we personally practise in Toronto, yes.
Mr Martiniuk: We've had some discussion in regard to the rotation of judges in the eventuality. Now, you're Toronto-based, and that's why I asked the question. In the areas outside of Toronto, we don't have 10 judges perhaps to draw on in a particular matter in civil litigation. We might have one or two in some of the smaller county benches. What's your opinion about providing the Chief Justice with the power to inject non-specialists or people who do not exclusively do family court work in a Unified Family Court in certain circumstances?
Ms Huddart: We'll both probably want to respond to this, because we both have our own experiences. I think it really depends on who the person is. We've certainly had judges who have come into General Division who have not had a strong family background who have been great. We've also had judges come in who have been problematic. Now, those judges don't usually last very long, and oftentimes they're not there because they want to be; they're there because they're going through the rotation, which is something of what Joanne was saying earlier. It is hard to determine in some cases.
Ms Stewart: I'm originally from New Brunswick and I practised there for a little while. I've been practising in Toronto for nearly 16 years. Because of the diversity in the population in Toronto, there is a huge diversity in the way in which matrimonial cases have to be handled, driven by the people's backgrounds, the amount of money they have, and out of the backgrounds and the money arise the legal issues. I think there is in Toronto a big segment of the population with relatively simple legal issues that aren't so simple when they're complicated by the emotional things which are, from our perspective, not irrelevant, but almost irrelevant.
If there is a panel of judges who are equipped to deal with people and they're prepared to deal with the people -- particularly those people who now are, say, in provincial court. A lot of the people are unrepresented; they don't have lawyers or they're in and out with the lawyers because they can't afford the fees. They wish it was like OHIP, that we got paid by the government. If you have an insurance lawyer who sits as a family law judge with a person who's unrepresented, all they want to do is put their heads in their briefcase because they don't know what to say. They can't stand the crying. They don't want the yelling. They don't know what to do.
From my perspective -- and I don't know if I speak for the CBAO or not -- it's really imperative to have at least a panel of judges who are really prepared to deal with the people, because when you unite the courts, the people are going to be there, and it's not necessarily Judy and I with clients who, by and large, pay us and who have more sophisticated issues. They're actually there for legal reasons because we can't solve the problems ourselves and we can't get a mediator to solve the problems, so we go to the court because we're stuck. It's really the last resort.
But we represent maybe 10% of the population -- maybe. The other groups are there for all kinds of issues that really require a special kind of judge who's not necessarily acting like a judge, because it's not a legal problem. People need to hear: "Calm down. You can go here. I can send you there." Again, a great insurance lawyer who practised for 25 years won't want to do it, can't do it, is not trained to do it, and I think it's a problem.
Ms Huddart: I guess that will depend on -- if it's left as a discretionary matter, it's a question of how well that discretion is exercised. That can be problematic, although I suppose the other side of that is that if you start arbitrarily saying who's going to do it, you could cut out fine judges as well. There are family law lawyers, I guess we all can say, who aren't wonderful with their clients, and they could be appointed as a judge. They may have the experience per se, but they may not be the right person for the job either.
The Vice-Chair: We have to move on now to the Liberal caucus.
Ms Castrilli: Thanks very much for being here. You're our last presenters and I have a whole host of questions.
I want to first say as a practitioner that I have great admiration for the family bar. Obviously, some cases have slipped through the cracks, like Ms Strathdee's, but your segment of the profession is certainly the most hard-worked, having to deal with not only complex issues but issues that involve emotions and trauma, which make it even more complicated.
I want to raise an issue that appears to be a conflict. I don't know if you were here earlier, but Mr Martiniuk, the parliamentary assistant, introduced a series of letters which ostensibly support the government's position that young offenders should be in the Provincial Court jurisdiction. Right now, as you know, it's a concurrent jurisdiction. I'm aware that that's not necessarily the position of judges in family court. In fact, one of the letters Mr Martiniuk presented -- and this is over the signature of Judge Linden -- goes on to say, "I'm aware that the president of the Ontario Family Law Judges Association wrote to the Minister of Justice of Canada expressing the association's view that young offender jurisdiction should be included [exclusively] in the Unified Family Court."
We've now had conflicting views here, and I'm really wondering where the family bar is on this issue. We've heard it should stay concurrent, that it should be in family court, that it should be solely in the criminal courts. Do you have views on that?
Ms Huddart: We're looking a little concerned because I have to tell you, quite honestly, that it has not been an issue that has been raised by any of the members of our section.
I realize that is a change, but it is my belief that generally the lawyers who practise family law do not necessarily do young offenders. That tends to be kind of peripherally criminal, although I understand there are a lot of family law issues that come out of that. I think that's why we haven't had a lot of input on it. It tends to be over here, seen more as a criminal matter, albeit not in the same sense as somebody who's charged with the offences under the Criminal Code. I am not helpful.
Ms Stewart: It's helpful in the sense that there are a lot of people who go to these section meetings of the CBAO, and the executive is huge. It's so peripheral we don't even think about it, because to us it's criminal law. I can't think of anybody who does it. We just don't. It's criminal lawyers.
Ms Huddart: There are a few, but they really are few.
Ms Castrilli: I'm curious, because the comment was made by the president of the Ontario Family Law Judges Association. I have to take him at his word and take it very seriously.
Ms Huddart: From a judge's perspective, they're getting those cases in there. You're asking us as lawyers whether those are the cases we would carry. The criminal bar may have more input on that, in fact, if they're doing more of those cases, as to whether they have strong feelings. I don't know if they've made any submissions at all on that.
Ms Castrilli: But you would agree that it's important that whatever rotation takes place -- and some rotation is necessary and important -- there must be experience and sensitivity to the issues; that you couldn't put, as you said, an insurance lawyer --
Ms Stewart: I think that way.
Ms Huddart: We don't want to blackball insurance lawyers.
Ms Stewart: No, no. That was just --
Ms Huddart: I think what we're trying to say is that a background in conciliation and an ability to deal with people from various walks of life whose problems aren't strictly legal but are often entangled with emotional issues -- those are the criteria we need. Certainly family lawyers are generally expected to have that. We don't always have it, but I think that would be the primary emphasis we'd want to see, and certainly training. I know there will be training provided, and I think there should be more emphasis on training of judges and perhaps lawyers, certainly lawyers who are going to be taking on those roles, particularly mediation skills, alternative dispute resolution skills. That is happening now already with judges and I think it needs to happen more, particularly in family law.
Mr Kormos: You are the last submission. It's interesting that we're doing clause-by-clause this afternoon, so I suppose if there are any real amendments, they're going to have to be generated by the government in response because of the short time frame. It's been interesting.
Just by way of note, the Ontario Association of Children's Aid Societies again raises concerns about this business of YO phase 1 being transferred over to what I colloquially call the provincial court, criminal division, which isn't the proper name for it any more. All that does is attest to my age.
I can't speak to you without being cognizant of Ms Strathdee being here and the submissions she made. Let me just throw out this real quick. I got a call from a couple in London family court -- no counsel. They believed the line that you don't need lawyers to go to family court. But here's a young couple: There are assault allegations, there's fear on the part of the wife, and here they're sitting in court all day waiting for a motion to be heard, almost side by each -- very painful, quite frankly, for the wife and for her spouse. Both of them don't want to be near each other. They get to 4:30 and, bingo, the matter's adjourned because the court's simply run out of time. And that's not the only call I've gotten.
I support the Unified Family Court. I'm from Niagara. Hamilton's had a wonderful experience and Niagara wants one. But the other one is the adequacy of courtrooms and judges.
Ms Huddart: That's true no matter what court it is. That's now. That's a real problem.
Mr Kormos: Yes, exactly.
Ms Huddart: In terms of how you design the facilities -- I guess we've always felt in the family law section that courts are there for the people, judges are there for the people, and in terms of scheduling, a judge's schedule should fit the people who are there, not the other way around. That impacts on us and our clients dramatically, because not only are our clients sitting there almost side by side; we're sitting there and we can't do anything else while we're there.
Mr Kormos: Quite right.
Ms Huddart: That means our client is going ka-ching, ka-ching, ka-ching every time we wait an hour or two hours or a day to be heard. I don't know that we're going to solve that problem, but that's something that should be resolved.
Mr Kormos: I just wanted to highlight that, that UFC -- again, God bless, but all the UFC principles in the world, without adequacy of courtrooms and judges, are for naught.
Ms Huddart: Absolutely.
Mr Kormos: This may be totally unfair, but Ms Strathdee has to be addressed one way or another. You heard what she had to say. Five, six lawyers now, however many. Legal aid clearly isn't going to accommodate her because legal aid isn't going to pay enough for a lawyer to tackle her file. Her file has grown and grown and grown, and she's become obsessed with it, right? No disrespect, but you have, like so many other people, and understandably so. It's become her life. She's been reduced from a middle-class lifestyle to living on welfare in a one-room apartment.
With respect to Ms Castrilli, I have talked to far too many Ms Strathdees here in Toronto and in my constituency office. Where does Ms Strathdee go to get this matter resolved? You understand that she has to get it resolved or else she's never going to carry on with her life, right? You know that. Where does she go to get this resolved once and for all, for better or for worse?
Ms Huddart: With the greatest of respect, I don't think that's --
The Vice-Chair: Mr Kormos, unfortunately the response is going to have to be made to Ms Strathdee afterwards. You have used up all your time.
We must adjourn -- recess, I should say. Under the subcommittee report, the amendments must be tabled with the clerk of the committee by 1:30 pm today. Ms Castrilli and Mr Kormos, you can present your amendments to the clerk by 1:30. The government, of course, can present its amendments.
We will recess now and return at 3:30 for clause-by-clause.
The committee recessed from 1155 to 1531.
The Vice-Chair: We will get started.
Mr Martiniuk: Mr Chair, on a point of order: It is traditional to have all three parties present when we're considering a bill, and I would suggest maybe another five minutes so a member from the third party can be present before we start.
The Vice-Chair: So you would like to recess for five minutes?
Mr Martiniuk: Yes.
The Vice-Chair: Is everyone in agreement? Agreed. We'll recess until 3:40.
The committee recessed from 1532 to 1534.
The Vice-Chair: We'll call the meeting to order.
Mr Kormos: It's about time, Chair.
The Vice-Chair: Mr Kormos, if you had been here on time, we would have got started on time.
Mr Kormos: I got here exactly at 3:30.
The Vice-Chair: Your watch is slow. I guess that would indicate why the NDP is no longer in government.
Interjections.
The Vice-Chair: An editorial comment like that from the Chair is not permitted, and I will refrain from doing so ever again.
Mr Kormos: Just apologize.
The Vice-Chair: I apologize, Mr Kormos.
Mr Martiniuk: So that's why the NDP isn't in power.
Mr Kormos: It's the watches.
The Vice-Chair: We're here to do clause-by-clause. I guess we should start with section 1. That's usually a good place to start.
Any comment on section 1? All in favour? Carried.
Section 2: There being no amendments, all in favour? Carried.
Section 3: Any discussion? All in favour? Carried.
Section 4, the short title of the act: Any discussion? Ms Castrilli.
Ms Castrilli: No, no. I was getting ready for the vote, Chair.
The Vice-Chair: Are you in favour or is there discussion?
Mr Kormos: Let's have some debate. I chose section 4 because it's the short title of the act, until we get into the schedules of the act.
Look, I suspect this whole exercise is going to be rather brief. My only disappointment is the failure of the government to respond to the concerns raised by several presenters this morning about the elimination of exclusivity of jurisdiction over phase 1 young offenders by the family court and in fact the transfer of jurisdiction over to what I colloquially refer to as the provincial court, criminal division.
The PA gave us the letters from Judge LeSage and Judge Linden. Again, we don't know the background to those letters, but the letters seem to support Bill 48, specifically what it does in terms of relinquishing family court of responsibility for phase 1 YOs. So what? So both of them take that position, two points of view; good for them. It appears that the participants in those meetings they refer to held the same view, and I say good for them. But we heard from practitioners today, and if you reflected on the comments of, among others, Mrs Boyd on second reading of this, she expressed concerns about that then.
The people who spoke here today, including the Ontario Association of Children's Aid Societies, which filed a written submission, have a point of view that warrants more than a cursory response by the government. I just find it very disappointing that this is going to pass without there having been a more thorough consideration. As a matter of fact, I'm glad Mr Skarica got here today. In his response to the one lawyer who appeared, the lawyer from Muskoka, he made it quite clear that in terms of the process a YO trial is a criminal trial, but that's a given. At the end of the day, though, what these people were talking about when they expressed concern about the relinquishing of this role by the family court was not so much in terms of the trial work but in terms of the sentencing work, where they suggested that a degree of specialization, especially the specialization that's consistent with the family court, is probably preferable in terms of sentencing convicted young offenders. That's not going to be addressed, obviously, by the way of the government in any amendments, so we're going to be looking at a situation where the historical criminal courts are going to have exclusive jurisdiction -- again, as I understand it; the PA may want to correct me -- over young offenders, both phase 2 and phase 1, and phase 1 has been the subject matter of attention.
I just want to express concern about that. It's unfortunate. I think there are ways that it could have been addressed, and appreciating that there is but one day for hearings on this matter, it's regrettable that the government wouldn't take a little more time perhaps to reflect on that more thoroughly.
The other issue is the issue of the roster of judges and the power of the Chief Judge to move them in and out. The government has an amendment that, when we get to it, purports to respond to the concerns raised about that.
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Mr Martiniuk: No, not ours.
Mr Kormos: I'm sorry. The Liberal Party has an amendment. I read these quickly. They were given to us in the House.
Interjection.
Mr Kormos: Don't worry about it. I'll give credit where credit is due.
If you want to talk about Liberals, I should take a shot at them, because it all comes down to the federal government's appointing sufficient county court judges -- I call them county court judges -- sufficient federally appointed judges to make this work. I'll take that shot at the Liberals before the Tories do. As well, though --
Ms Castrilli: I thought we were into clause-by-clause.
Mr Kormos: No. We're into section 4, the short title.
As well, you heard the interesting comment -- again, we had so little time with so few people -- by the participants here from the Canadian Bar Association, family law section. They said at the end of the day you can have Unified Family Courts and expansion all over the place, but if you don't have sufficient judges and sufficient courtrooms, the concept will be laudable and where people do have access to those courts, it will certainly be more successful, but it's not going to work for all the litigants.
I recited to you, again anecdotally, a case out of London, as it happened, where family litigants had to sit beside each other in a packed courtroom all day waiting for a motion for access to be heard, and then at 4:30 there was still stuff left on the list, and the judge presiding over that court -- after these people enduring each other all day, with great stress to each other -- sent them home and told them to come back in a couple more weeks. How many times that will repeat itself, who knows?
I just want to indicate now -- the problem is if I wait until the end to make these comments, there may not be sufficient time; far better that I make them now, because obviously we're going to go through this relatively quickly -- at the end of the day it's still a matter of resources being allocated or provided to these courts.
Then, as well, I have this concern. The young woman from Welch law firm, Ms MacNaughton, spoke about Niagara region, and there have already been sufficient amendments so that Niagara region is effectively one judicial district for the purpose of courts sharing each other's bailiwicks, Niagara north and Niagara south, although in practice St Catharines is a county seat and Welland is a county seat. If those courts are forced into merger by way of a Unified Family Court, granted there'll be a Unified Family Court, but there won't be access by people from the southern level of the region to the northern level if it happens to be in St Catharines, or vice versa, from the northern level down to Welland county, to the Welland seat, if that happens to be the location of a Unified Family Court.
Again, that speaks to the number of judges available, for which the province is very dependent upon the federal government. But don't forget, we heard one lawyer express enthusiasm about these appointments because a federally appointed judge makes a good 20 to 25 grand a year more than a provincially appointed judge, so there are a whole lot of family court judges very anxious to get on the short list of people appointed to these Unified Family Courts by the federal government. Not only is it reflected in their salaries but also in a far more attractive pension available to them. That's the reality of it.
I just wanted to make those observations and express some regret that we didn't have a more thorough consideration of the concern about YOs again, particularly sentencing taking place in criminal courts, and second, about the ability of the senior judge to move people in and out willy-nilly, which seems to defeat the purpose of the Unified Family Court in some respects.
The Vice-Chair: Responses? More discussion? Then I'll call the question. All in favour? Opposed, if any? Carried.
We'll move to schedule A, part I, section 1. Any discussion? I'll call the question. All in favour? Opposed, if any? Carried.
Section 2: Any discussion? I'll call the motion. All in favour? Opposed, if any? Carried.
Mr Martiniuk: If I may move an amendment, Mr Chair, I move that schedule A to the bill be amended by adding the following section:
"2.1 Subsection 18(2) of the act is amended by striking out 'the associate chief justices' where it appears and substituting 'the associate chief justice.'"
The Vice-Chair: You've heard the amendment. All in favour? Opposed, if any? Carried.
We have a Liberal amendment to section 3. Ms Castrilli, do you wish to move the amendment?
Ms Castrilli: I listened very carefully to what Mr Kormos had to say. I thought it would be more appropriate to leave our comments to the relevant sections rather than to a general introduction.
This is one of the areas where we have a great deal of concern, so I'd like to move that subsection 3(2) of the schedule A to the bill be struck out and the following substituted:
"(2) Subsections 21.2(4), (5) and (6) of the act are repealed and the following substituted:
"Temporary assignments
"(4) The Chief Justice of the Ontario Court may, from time to time, temporarily assign a judge referred to in clause (1)(d) or (e) to hear matters outside the jurisdiction of the family court.
"Condition of assignment
"(5) The Chief Justice of the Ontario Court may not assign judges of the General Division to the family court under clause (1)(f) unless he or she is satisfied that they have had experience in the area of family law."
I'd like to explain that. In order to understand this amendment you actually have to go back to the Courts of Justice Act and you'll find that under clause (1)(f) it in fact talks generally about the appointment of judges and the moving of judges into the family division, so that this condition of assignment is not intended only for temporary assignments but whatever rotation the judges may want to do on a regular basis. It's not just for matters which are outside the jurisdiction of the family court. I make that clear because it's a much broader amendment.
The reason for that is we heard this morning in the various presentations, and certainly it's an issue that we raised in the Legislature before, that in order for a Unified Family Court to work well, you have to have individuals in the family court who are experienced in mediation, who are experienced in family law litigation and who have an understanding of the complexities of the law. It doesn't involve just the Family Law Act, it's a whole series of statutes that are involved and they're really quite complex.
Add to that the fact that there are issues that are not just tinged but fraught with trauma and emotion for the people going through it. Add to that as well the fact that at the moment in our court system the vast majority of litigants in family court are unrepresented. You absolutely must have judges who understand what's happening. You cannot have someone who comes from an entirely different discipline, a corporate lawyer, who suddenly comes in -- with all due respect to corporate lawyers; I myself was one at one time -- and expect that person to have the sensitivity and the understanding that's required in that particular instance. It's absolutely critical that that be case, and we've heard that today from practitioners, we've heard it in spades.
So it seems to me that this is a very reasonable amendment. It isn't intended to fetter the court, as the parliamentary assistant will tell us, but it is intended to give some guidelines that you cannot just put anybody with a law degree in situations such as this. There are many problems in the justice system and we cannot compound the situation by having judges who may not have all of the skills necessary in a very critical area of the law.
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Mr Kormos: I had misread it. I thought, quite frankly, this was a government motion, which is why I was prepared to crap all over it. But in view of --
The Vice-Chair: But you've changed your mind?
Mr Kormos: No, no. I'll still, in the interests of consistency, dump all over it again. Unfortunately, this indicates a misunderstanding, in my submission, of the problems spoken to by presenters. This says, "unless he or she is satisfied that they have had experience in the area of family law." I have no idea what that means and I don't think that the Chief Justice will understand what it means.
Does it mean that they've undergone a divorce or they've been a litigant? Does it mean that they've practised family law? Does it mean that they've previously been acting in the role of judiciary in a family court? That's the weakness here. That's not the point.
I understand that there will be people -- and I hope there will be people -- appointed to the Unified Family Court, obviously not by way of the reappointment of provincial family court judges but new appointments, who have no background in family law whatsoever. I anticipate that. In my view, it's no more critical that a judge in a Unified Family Court have previous family law experience as a lawyer, for instance, than it is that a criminal judge has previous experience as a criminal lawyer. I think all of us have seen some excellent appointments to any number of areas on the bench by people who may not have had any of that experience in their former practice but who display great skill on the bench once there. Oftentimes there is a comment about bringing a fresh view to things, a fresh look. Sometimes it's preferable that people, for instance, appointed to the criminal court have no extensive criminal background.
Mr John R. Baird (Nepean): Background? They'd better have experience.
Mr Kormos: That would probably be useful. I guess if Mr Vankoughnet were a lawyer, there'd be any number of functions he could perform with his expertise and talents. I trust that's what you're referring to, Mr Baird. Mr Vankoughnet will appreciate the reference and your support of him. I don't think he's a lawyer; I'm not sure.
In any event, it's not about whether or not someone's had previous experience. I think the issue is really about whether somebody is prepared to serve in that court and develop (1) the expertise, and (2) it's imperative that these judges be in that court for a considerable period of time, and I'm not talking about 20 years, 30 years. I'm talking about that they be there not just for three months, four months at a time, so that they can get a feel for what's happening to cases, how they can track cases as they go through the courts.
Let me tell you what happens. You're involved in family litigation, not so much in small-town Ontario, but there the family court judges are overburdened and so are the old county court judges. You appear in front of Judge A one time. That judge grants an adjournment on the request of somebody or one party or another. The next time you're in court you appear in front of a different judge. That judge then hears another application, another motion on the part of a certain lawyer. Then you appear again, you're in front of a third judge. That judges makes an interim order and then the order may be allegedly breached and then you appear in front of a fourth judge. So nobody is carrying this thing from beginning to end, and that's part of the problem and that's part of the appeal of Unified Family Courts, in that there's more capacity for a single judge to be monitoring the progress of a case through the court.
I think that's really what, at the end of the day, part of the concern is about judges flowing in and out, being rotated through this court. You want to avoid the same old story of what's happening now, especially in bigger cities: I suppose in London, Toronto, Ottawa. You know what I'm talking about. You take your pick, it's the luck of the draw that day. You could end up with a judge who is totally disinterested, who is there on a temporary placement, who is filling in for somebody else, who doesn't want to -- what's the language? -- become seized of a matter. It might be a two- or three-day matter and that judge knows that he or she is going to be out of there in a week's time or is supposed to be out of there in a week's time, so he doesn't want to start hearing the trial of an issue.
That's the problem and part of the concern about judges flowing in and out is judges who haven't had an opportunity to develop this reservoir of skills and familiarity and perhaps even sensitivity.
The other part is judges who can be there so they can understand what's going on in those courts and come to grips with it. You guys talk about case management all the time. You don't need a case manager and all sorts of bureaucracy to effect that. You need judges staying in one place so they can see what's happening. I think judges are quite capable of giving effect to that case management.
I'll still support this amendment. I know that Ms Castrilli ran to her office at lunch time to write this out, to draft it and to type it up.
Ms Castrilli: I didn't.
Mr Kormos: I'm sure she did. She's that kind of conscientious person. I'm sure she ran back to her office, sat down at that old IBM Selectric and punched this out.
I understand why it doesn't quite hit the nail on the head, but I don't think it's just a matter of having experience in a particular area. It's a matter of their permanence in that position and the information and the skills and the sensitivities they acquire as a result of their permanence there. That's why I'm concerned about the wording. It may misrepresent the real concern here, one which the government hasn't responded to. That's why I'm going to support the motion. While this amendment may not address the issue dead on, the government hasn't addressed it at all and that causes me some concern.
Ms Castrilli: I agree with the thrust of Mr Kormos's comments. I must say that in the fullness of time we would have been able to present a motion that addressed more concerns than just this. This is incomplete, there's no question. I think legislative counsel did everything they could, given that we had less than an hour to prepare amendments and get them filed. It may be incomplete but I think the gist of it is there and it's important.
I'd just like, though, to remind Mr Kormos that his own party in the Legislature talked about how very important experience in family law was and I'm not sure that just having the commitment to it is enough. I'd refer you to Hansard and what Mrs Boyd said about the fact that the whole purpose behind the family law court is to make very sensitive decisions and what you need is "people who have a thorough understanding of family law."
I think we start off from the same premise and I agree with you that this should have been a fuller motion, but this is what's before us. I don't think we should ignore the reality that this is a very specialized area of the law and you do need some competence. I would have loved to have put more motions before you which amplified some of the concerns we have today.
Mr Kormos: I hear what Ms Castrilli is saying and I know full well what Ms Boyd feels about this. Fortunately, in my party, and certainly in my position, we don't go around echoing each other, notwithstanding how hollow that echoing may begin to sound as it comes from other opposition parties.
I'm not in accord with Ms Boyd in that regard. She's not a member of the committee; I am. I've made reference to her point of view several times here today and I'm prepared to do that. Quite frankly, I disagree with Ms Boyd in that very specific area. I've had experience in the courts and with judges which I can use to support my position that other people may not have had.
The Vice-Chair: Further discussion? Shall the motion carry? All in favour? All opposed? The motion is defeated.
Shall section 3 carry? All in favour? All opposed? Carried.
The Liberals have presented an amendment which is not an approved amendment.
Ms Castrilli: It wasn't intended to be an amendment, Chair.
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The Vice-Chair: Is there any discussion on section 4?
Ms Castrilli: Absolutely. This is the second item in this bill that gives us some very serious pause. We heard today from members of the bar, from the children's aid society through a written submission, and from Justice for Children and Youth, that it's absolutely wrong-headed to take young offender matters and put them solely in criminal court. Think about what that means for a moment. The Young Offenders Act, as the criminal lawyers here will know -- I don't purport to be a criminal lawyer -- begins at a very young age, 12.
You are saying that you're going to have 12-year-olds in the provincial court system. Those children have a whole host of problems, one of which may well be an offence of one sort or another. When you put it all into provincial court, you lose the benefit of the family court and the decision-making power in the family court, which I think is part and parcel of how you treat these kids. We want to rehabilitate these kids; we don't want to send them into a system where their life will become much more difficult, where they will be exposed to much more than their young years would permit.
What we had to date, and I think it's a much better system -- if anyone has the Courts of Justice Act before them, you'll see that under 21.12 a presiding judge in family court had all the powers of a provincial court judge in the criminal division. Therefore, you had this concurrent jurisdiction. There is obviously a split among the judiciary with respect to this. The parliamentary assistant this morning was very kind to provide us with letters from Judge LeSage and Judge Linden, who indicated they support the notion that the Young Offenders Act now should just be dealt with under provincial court. Yet the controversy is that the Ontario Family Law Judges Association doesn't agree. They're the ones who deal with these kids. They believe that it ought to stay in the family court, and be transferred to this Unified Family Court. Those are the people who have expertise in the area. The bar is telling us that, and people who deal with children are telling us that it belongs in the family court. So I don't understand the rationale for taking these extraordinary moves and pushing it all into the criminal justice system.
We will vote against this. I think a better compromise would be to simply let the status quo prevail, let there be concurrent jurisdiction so the best possible attention can be given to these kids and so we do not create more problems for them -- and for us in the end. If we are going to not look after how we rehabilitate these kids, I think we're going to be paying for them down the line. I don't think there's any question about that. The earlier you expose a child to the criminal system, the better chance you have of growing a criminal.
I'd like the government to really reconsider its position and to simply vote against this section of the bill and allow the existing section of the Courts of Justice Act to prevail. It will do a much better job than this section.
Mr Kormos: I'm going to tell you right now, I'm going to support Bill 48 at the end of the day here in committee and in the Legislature. I think it's important that we move along with the process of Unified Family Courts. You heard the discussion this morning, that I referred to already, on this issue. It was raised by several people and it involved some discussion. Once again, Mr Skarica was one of the parties to that discussion.
I had asked some of the people -- again, it's a problem with the haste with which this is proceeding through committee, I suppose -- to take a walk down to a provincial court, criminal division and/or even a provincial court, family division and look at the cookie-cutter, sausage-factory justice that is being dispensed. Here in Toronto you have courtrooms, the hallways of which are teeming with people, virtually on top of each other, having to wait outside for their turn to be called into court. You haven't got enough space inside the courtroom for everybody to be there at the same time. People have to wait in the hallway for their turn to be called in.
Unfortunately, there is a big difference between a high-priced defence and a low-priced defence. Legal aid counsel don't have the resources available to them, and the luxury of mounting a sophisticated defence and calling experts and all that sort of stuff. Legal aid simply doesn't permit it. So you have what I call sausage-factory justice taking place.
The speed with which judges are called upon to supposedly dispense justice is alarming. I suppose it's fine if you're looking at it as a third party, watching somebody else get done in. But if you're the kid appearing in front of that court -- we're talking here in the context of young offenders -- and the judge is just processing them every 15 minutes, it doesn't create a very good impression of the administration of justice. You wonder then why a kid can walk out of a courtroom -- again, I'm speaking of young offenders -- not having very much regard for what just took place and the parties to it. If you take a look at what's happening -- heck, I've walked out of there not having very much regard for what's happening and the people involved in it, never mind being a 13-year-old or 14-year-old kid who may have any number of problems. You heard my reference this morning to a report that 64% of kids in our YO facilities, secure custody, suffer from at least two psychiatric disorders simultaneously. It's an incredible bit of data.
You've got that distinction -- these are gross generalizations -- between a criminal court judge who hands out essentially what are called tariff sentences -- in other words, a car theft is worth X amount; a burglary is worth X amount in terms of penalty; shoplifting is worth X amount, again, depending whether you're a first offender, second offender, third offender -- a whole bunch of considerations, but by and large it's tariff sentencing.
My position is that YO courts call for far more tailored sentencing. What that means -- this is where criminal defence lawyers would jump all over me -- is sometimes the tariff is inadequate. Let's face it: For a mere shoplifting you can't send somebody away, from a criminal court point of view, for an undue period of time. Let's say you're going to give time. You can't send him away for an unduly lengthy period of time for a mere shoplifting of a candy bar. Yet in YO court, the principles are supposed to be different. Here's a chance for the state to intervene and engage in rehabilitation and/or treatment.
The argument that corresponds with that is that sometimes a judge should be giving a longer sentence than a criminal court judge would give, in other words, than what that offence would be worth in the criminal court -- because that's how they're measured: a B and E is worth X amount; a car theft is worth X amount. But that depends upon the availability of treatment programs. The judge has to be sensitive, because we have real problems now in terms of shortages of bed space in open and secure-custody facilities. You've got kids who are being sentenced to open custody and there are no open custody facilities, and similarly vice versa, depending on where the kid is. So the kid is either being shipped 200 miles away from home or the crown, after consulting with a probation officer or what have you, jumps up and says, "Judge, there is no facility of that type with beds in it," so the judge is stymied; the judge can't do what he wants to. And that's assuming he's been given the time.
The amount of time a lawyer can devote to a particular case -- so much of this depends upon the lawyers, too, the defence lawyer in particular. That's where the legal aid issue is very relevant. You heard during Bill 68 hearings about how important it was for a defence lawyer to be involved. You heard it from the lawyer from Thunder Bay, when we were up in Sudbury, the young lawyer who talked with us. I was very impressed with his holistic approach to practising law. He had to be in touch with treatment programs, he had to know what resources were available in the community so he could give direction to the judge during the course of sentencing, so the judge had all these options before him. I believe it's part of a lawyer's job, be it a crown attorney or a defence lawyer, but when you've got this sausage-factory justice and you've got legal aid lawyers, or duty counsel, even worse -- not that they're worse, but even more dramatically -- processing these people through, that sort of stuff, those representations don't get made to a judge.
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This issue of family court judges versus criminal court judges doesn't stand alone. It's part of that bigger package. I suppose at the end of the day merely giving these cases to family court judges won't solve the problem in terms of adequacy of legal aid support, adequacy of number of judges, adequacy of number of courtrooms so justice can be performed in a professional manner, in a thorough manner, but at least it's a start, because we can assume that family judges, because of the nature of the work they're doing, have contact and access to this information as a result of their family court work. I suspect that at the end of the day the cases are going to be processed, the stats will be produced, but there will be, whether they ever become exposed or not, tragedies flowing as a result of this.
What you're doing as well is putting enhanced pressures on criminal court judges. Have you thought of that? You're transferring a huge caseload out of what are now family courts into provincial court, criminal division. These kids, these 12-to-15-year-olds, inclusive, will become part of that mammoth instant justice system.
As I say, go to any courtroom here in Toronto or quite frankly anywhere else in Ontario, whether it's in the basement of a Royal Canadian Legion, as they are in some rural areas, or in city hall chambers or town council chambers or in permanent courtrooms, and watch the cookie-cutter, sausage-factory justice. What you're doing is even adding more to the caseload. I don't think the government has numbers on what the transfer will involve and what it will do to the existing workloads of those provincial court, criminal division judges and their staff and their courtrooms. I think this will rear its head in an unfortunate way before all is said and done, before it's straightened out.
The Vice-Chair: Further discussion? Shall section 4 carry? All in favour? All opposed? It's carried.
Section 5: Any discussion? I will put the motion. All in favour? All opposed? Carried.
Section 6: We have a Liberal motion for an amendment which is not appropriate. Any discussion on section 6?
Ms Castrilli: This is a companion section to section 4, and raises exactly the same issues about how you really view our responsibility as a society to children who may have gone astray. I would think you would want a 12-year-old, who is a child, to be in a system where one can look at the child's needs and develop some kind of program to ensure that he doesn't reoffend.
I agree totally with my colleague from the third party that it's inappropriate to put young children in that kind of situation, where they're nothing but a number on a docket and there isn't the expertise to deal with all the other issues that this child may be dealing with. We've heard from Justice for Children and Youth, for instance, that these kids have significant other problems. They may come from homes which are broken; they may be in the middle of custody disputes; they may even have some psychiatric disorders. It makes no sense to throw them into the provincial court system, criminal division.
We made these arguments with respect to the previous section. I can only say again that it's simply not appropriate. The best thing to do would be to leave it now as it is, in concurrent jurisdictions, so you have judges with experience to deal with the a whole host of problems when they are faced with such young children.
The Vice-Chair: Further discussion? Shall section 6 carry? All in favour? All opposed? It's carried.
I have no amendments to sections 7 through 10. Shall sections 7 through 10 carry? All in favour? Opposed? Carried.
We have a government motion for an addition to section 10.
Mr Martiniuk: I move that schedule A to the bill be amended by adding the following section:
"10.1 Clause 65(2)(a.1) of the act is amended by striking out 'associate chief justices' where it appears and substituting 'associate chief justice'."
The Vice-Chair: Discussion?
Ms Castrilli: Just a question of the parliamentary assistant. This is one of a series of motions that the government has put forward which are identical. They basically change what appears to be the spelling. I'm sure it has more substance than that. I would really like to hear from the parliamentary assistant as to the reason for these changes.
Mr Martiniuk: As I understand it, it's just a technical error. We now have one rather than a number of associate chief justices.
Ms Castrilli: Thanks very much.
Mr Martiniuk: God bless word processing.
The Vice-Chair: Further discussion? You've all heard the amendment. All in favour of the amendment? All opposed? It is carried.
I have no amendments for sections 11 through 18. Shall sections 11 through 18 carry? All in favour? All opposed, if any? It's carried.
We will move to schedule B.
Ms Castrilli: No, I don't think so.
The Vice-Chair: I'm sorry.
I have no amendments to section 19 or section 20. Any discussion?
Mr Martiniuk: Mr Chairman, what are we dealing with?
The Vice-Chair: Section 19 and section 20. Shall sections 19 and 20 carry? All in favour? All opposed? Carried.
Shall schedule A, as amended, carry? All in favour? All opposed? Carried.
Schedule B: I have no amendments to section 1. Any discussion? Shall section 1 carry? All in favour? All opposed? Carried.
Shall section 2 carry? All in favour? All opposed? Carried.
We have a government motion adding section 2.1, a new section.
Mr Martiniuk: I move that schedule B to the bill be amended by adding the following section:
"2.1 Subsection 18(2) of the act is amended by striking out 'the associate chief justices' where it appears and substituting 'the associate chief justice'."
The Vice-Chair: Any discussion? Shall the amendment carry? All in favour? All opposed? Carried.
I have no amendments for section 3 through section 10. Any discussion? Shall sections 3 through 10 carry? All in favour? All opposed? Carried.
I have a government motion adding section 10.1.
Mr Martiniuk: I move that schedule B to the bill be amended by adding the following section:
"10.1 Clause 65(2)(a.1) of the act is amended by striking out 'associate chief justices' where it appears and substituting 'associate chief justice'."
The Vice-Chair: Any discussion? Shall the amendment carry? All in favour? All opposed? Carried.
There are no amendments to section 11 through section 18. Any discussion? Shall sections 11 through 18 carry? All in favour? All opposed? Carried.
Shall schedule B, as amended, carry? All in favour? All opposed? Carried.
Shall the long title of the bill carry? Carried.
Shall Bill 48, as amended, carry? Carried.
Shall Bill 48, as amended, be reported to the House? Agreed.
Ms Castrilli: If I can say a word of thanks to legislative counsel. They really worked very hard with the very little time they had at their disposal. Thanks so much.
The Vice-Chair: I appreciate that. I neglected to do that. Thank you.
Ms Castrilli: And of course you, Chair.
The committee adjourned at 1625.