NOTE FOR AN ADDRESS
BY
THOMAS W. MARSHALL, Q.C.
MINISTER OF JUSTICE & ATTORNEY GENERAL
ON THE OPENING OF THE FALL TERM
AND THE SUPREME COURT, TRIAL DIVISION
OF THE UNIFIED FAMILY COURT
NEWFOUNDLAND AND LABRADOR
Thank you
Chief Justice, Judges, Judge Soper, Your Worship Mayor Boutcher,
distinguished Guests, Members of the Canadian Bar Association, fellow
members of the Law Society, Ladies and Gentlemen. It is a pleasure to have
this opportunity to speak to you this morning at the opening of the 2005
Fall Term of the Supreme Court. This is especially so given that today�s
events are occurring here in Corner Brook, my home town and the place where
I practiced law for more than 30 years. I congratulate the Court, and you
Chief Justice, on the decision to hold the Fall commencement ceremony
outside St. John�s. It sends a positive and important message to all the
citizens of the Province.
Chief Justice I will focus my comments around two themes: - access to
justice; and - access to Government and governance institutions. In
addressing these two themes I propose to give a report on some of the
activities in the Department of Justice during the past year and a short
indication of what I would like to achieve over the next year.
Access to Justice: The Courts
When I addressed the Court at the opening of
Fall Term last year I set out what I believed to be a strategy for building
Courts of the Future in this Province. That strategy was necessarily
collaborative. It affirmed the principle of judicial independence, the
significance of the Court as an institution in shaping the life of our
Community and the importance of working together, recognizing our respective
constitutional responsibilities, to preserve and protect the critical role
played by judicial institutions in maintaining the health of our democratic
system. It also recognized the necessity of change in response both to the
Province�s fiscal imperatives and the need to provide broader access to
justice to our citizens. It was in pursuance of these two demands that I
announced in colloboration with the 2 Chief Justices and the Chief Judge the
establishment of the Courts Administration Advisory Board, comprising
representation from the three levels of court and from the department of
Justice to serve as a consultation and advisory body in setting a strategic
course for the future. I believe that I can report, and I think you will
agree Chief Justice, that the first year of operation of the CAAB has been a
success. The Board has overseen the establishment of Court Facilities
sub-committees in St. John�s, Clarenville, Stephenville and Corner Brook.
All four subcommittees have reported back. Planning and design money was
provided for a new Court Facility for Corner Brook in Government�s 2005-06
budget and background work on new or renovated facilities is under
consideration for the other sites. These are significant results in the
current fiscal environment.
I am also pleased that since last year the outside consultant retained to
assist the Supreme Court as part of its program renewal process, in
conducting a comprehensive internal review has now reported. Given the
affect of the report on Provincial Court as well as Supreme I am pleased
that the Chief Judge of the Provincial Court has engaged the same consultant
to complete a companion review of the Provincial Court which he hopes to
complete by the end of this month.
I firmly believe that where new and more effective ways of doing business
are identified we should not be afraid to pursue them. In Valente v
the Queen Chief Justice Lamer said "... judges are the stewards of
the great principles of the rule of law, not merely the status quo." I
believe these are sentiments that apply to all of us. My hope is that this
review will expedite the process of bringing forward much needed
improvements and yield significant gains in quality of services to a
community of users: judges, court staff, lawyers, and most importantly the
citizens of the province, who are the ultimate beneficiaries of our judicial
institutions.
I know there is a willingness to embrace change. Indeed there is recognition
that we must if we are to meet the increased demands of Newfoundlander and
Labradorians for access to justice. I know this from our dealings with our
first nations peoples and with my involvement with the preliminary proposals
for an expanded Unified Family Court System for the Province. Access to
justice involves a continuum of services. It is an objective that may be
achieved through the provision of various forms of assistance to parties
engaged in legal disputes, including the provision of legal information and
legal advice, legal assistance, mediation services, non-litigation
strategies and legal representation, and may require referral to other
community resources. Some of these are new ways of doing business. They
require a paradigm shift. But it is a shift that is necessary if we are to
meet growing demands and protect the rights of our citizens, especially the
rights of the economically disadvantaged and other vulnerable members of our
society.
This is part of the rationale behind our examination of a proposal for an
expanded Unified Family Court for the Province. The vision is of Judges who
are specialists in family law working together with professional staff
providing an array of services in an environment that is non-threatening to
litigants. Chief Justice McLaclin endorsed this view of "specialized courts
to deal with family matters" ... utilizing "mediation and counseling ..;
with the aim of resolving disputes about custody and property, more quickly,
cheaply and without rancour" ... and employing "settlement oriented rules"
in recent remarks to the Canadian Bar Association. She noted: "[a] access to
justice is particularly acute on the family law front, where the cost of
litigation uses up precious resources that could better be used in providing
housing and clothing for children and parents." This last sentiment is one I
am sure we would all share. In a June 2005 teleconference call with the
office of Judicial Affairs I was advised that this if this Province were
able to meet certain preconditions an application for new family court
judicial positions would be favorably received. What this means is that
subject to the passage of Federal Bill C-22 this Province may well be in the
queue for a number of new positions. We are currently assessing the
budgetary impact of this expansion and will be in a better position to do so
once the enabling amendments to the Judges Act are dealt with by the Federal
Parliament.
Chief Justice, ensuring the security of the courts and safe and secure
access to the courts by all participants in the court process - judges,
lawyers, staff, litigants and witnesses - is still another important and
fundamental element of access to justice. Judges and litigants must feel
free and be free to participate in the court process in a safe and secure
environment.
Since last year government embarked upon two new initiatives in this area.
In December of 2005, at the request of the High Sheriff and the courts the
legislature passed the new Court Security Act. This piece of
legislation sets the environment within which all court security officers
will operate, at the direction of the courts once rules and regulations
established by the courts are put in place later this year.
The second new initiative is the permanent expansion of court security to
this region. This expansion of court security to the West Coast was
announced as part of this year�s budget. It represents the first permanent
posting of Court Security Deputy Sheriffs outside St. John�s. It came in
response to a series of requests from various High Sheriffs, including the
present High Sheriff, David Jones and the courts for the creation of an
increased court security presence outside St. John�s. Accordingly, I am
pleased and proud to be here today to participate in the swearing in
ceremony for 5 new Deputy Sheriffs: Greg Power, Treena O�Brien, John Abbott,
Chris Casey and Steven Hyde, 4 of whom along with 2 other Sheriff�s Officers
will be stationed on the west coast of the province - 4 at Corner Brook and
2 at Stephenville. I know that these new Deputy Sheriffs will provide the
same kind of yeoman service to the courts here at Corner Brook and
Stephenville and to the people of this region as they do elsewhere in the
province. I congratulate them and their families and the High Sheriff on
this special day and look forward to being able to make further
announcements regarding court security in the coming year.
Access to Justice: Vulnerable Peoples
Chief Justice, public confidence in the justice
system, like public confidence in our health care system, requires that
meaningful steps be taken to ensure universal access to the system. Access
is an essential element in ensuring that all citizens are accorded equal
treatment before and under the law and equal benefit and protection of the
law without discrimination. The test of a just society, it is often said, is
how it treats its most vulnerable constitutiencies; including, children,
women, aboriginals and other minorities. I agree with this assessment and
want to share with you two ongoing initiatives within the Department of
Justice which bear upon it. The first relates to Legal Aid and the second to
the Community Tripartite Agreements under the First Nations
Policing Policy. Both initiatives are cooperative endeavours with the
Federal Government.
There can be no doubt that a strong Legal Aid system is one of the bulwarks
of Canada�s justice system. Economically disadvantaged persons must have
equitable access to the Court and all other aspects of the legal system.
This is becoming more and more fragile. The Provinces expenditures on legal
Aid, as you know, are cost shared with the Government of Canada. For the
fiscal year 2004-05 total base funding for the Legal Aid Commission in this
Province was as follows:
Provincial Contribution $4,532,965
Federal Contribution $2,621,935
Total Base Funding $7,154,900
These figures take into account the Federal contribution of one million or
so dollars provided under the CST, which is not reflected in the Province�s
departmental justice budget. The Provincial contribution to Legal Aid
exceeds the Federal by over one and one half million dollars. The percentage
breakdown is approximately 63% Province, 37% Federal Government. And this
does not include monies paid by the Provincial Crown in cases of Court
ordered counsel.
This is quite different from the 90 - 10 split when Legal Aid first started.
In addition to base funding the Province receives from the Federal
Government Innovation and New Project Funding in the amount of
approximately $560,000. This money has been used in the past two years to
create and bring on stream a number of extremely positive high profile new
initiatives: a Mental Health Project, an Aboriginal Law project, Family
Justice Services Central and the French lawyer initiative. The problem is
that this funding is non-sustaining and will cease on March 31, 2006. This
is unfortunate and unacceptable. It makes the process of building a legal
aid delivery system that is able to meet the needs of our citizens difficult
to well neigh impossible.
Justice officials from Newfoundland and Labrador together with other
provincial/territorial officials from across the Country are currently
involved in negotiations with Federal officials seeking a new Legal Aid
funding arrangement to begin April 1, 2006. The request is that the Federal
government step up to the plate with enhanced base and innovation funding.
The Federal Justice Minister has indicated his commitment to the process and
even to entering into a separate and new contribution agreement, outside the
CST, for Civil Legal Aid. The Canadian Bar Association National has weighed
in with a law suit claiming a constitutionally protected right to civil
legal aid. Without making any comment on this development I think it is fair
to say that continuing vigilance by all stakeholders is essential if we are
to have an equitable legal aid system all across Canada. There are mounting
pressures on that system, pressures which if left unchecked, could
compromise the integrity of that system. I know you share my belief that a
well functioning legal aid system is an essential underpinning of justice
services in this Country. Without it, accessibility and inclusiveness are
compromised.
The second issue on which I propose to report which bears on the issue of
access and involving our federal partners is the Community Tripartite
Agreements under the First Nations Policing Policy. I indicated
at Fall commencement last year that discussion with the Federal Government
as to the possibility of concluding agreements under the First Nations
Policing Policy had been stymied for some time. The adverse consequence
has been significantly reduced federal funding for policing in this
Province. Currently the Provincial Government pays 70% of the cost of RCMP
policing in the Province while the Federal Government pays only 30%. Compare
this to 52% Federal Government and 48% Provincial Government for agreements
under the First Nations Policing Policy. I am pleased to be able to
report that since my discussions with Deputy Prime Minister Anne McLennan
last year a bilateral Framework Agreement has now been successfully
executed with the Federal Government. This is an extremely significant first
step. It paves the way for starting a process for a series of Community
Tripartite Agreements with the Innu and Inuit Communities, with
resultant savings, that will allow us to undertake a series of new
initiatives in these Communities. I am advised that substantial inroads have
been made towards finalization of a number of CTA�s. I look forward to
building on the relationships initiated during my recent visits to Labrador
and to working with the Innu and Inuit leaders and elders in finalizing
these agreements.
Access to Justice: New Legislative Initiatives
It goes without saying that the
justice system to which Newfoundlanders and Labradorians want access should
be one that meets their developing needs and that is reflective of their
aspirations. All of us, government, the Courts and the legal profession have
a shared responsibility to ensure that the law and its processes and
practices are responsive to changing societal needs, and responsive,
moreover, in a manner that allows for the on-gong maintenance of a fair,
equitable and safe society where all people can pursue their lawful rights
and freedoms. In the case of Government and governance institutions this
entails a continuing commitment to openness, accountability and
transparency. It is in pursuance of these objectives that I am pleased to be
able to outline this morning a number of legislative initiatives to be
undertaken in the upcoming session of the House of Assembly.
1. Family Violence Protection Act
The first initiative of which I want to make mention is a new Domestic
Violence Act. The overriding objective of the draft bill is to
ensure an effective and enhanced level of protection for victims of family
violence, recognizing that the existing civil and criminal procedures may be
expensive, require the assistance of legal counsel and are often too onerous
and too protracted to provide the victim with immediate assistance and
protection. The Act will allow a Provincial Court Judge to issue an
Emergency Protection Order if he or she is satisfied that family violence
has occurred and that the order is necessary (taking into account other
factors such as a prior history of family violence, the best interests of
any children etc.) to ensure the protection of the applicant or applicant�s
property. The Emergency Protection Order once issued can be reviewed or set
aside by a Provincial Court Judge.
The basic objective is to establish a quick, accessible and straightforward
procedure to obtain short-term protection against family violence in order
to pursue other, more permanent remedies. The Act will allow victims and
children to remain in the family home causing much less disruption to the
family. The Act will include a broader range of remedial measures than is
currently available under existing legislation and to that extent will
provide a more practical and enhanced level of protection to the victim and
children.
2. Workplace Health, Safety and Compensation Act
The second initiative I wish to announce is one that I know will be of
interest to the legal and business community. It bedeviled me during my 30
years of practice and it gives me great satisfaction to have been able to
work with my colleague the Minister of Government Services and Lands to
resolve it. I am therefore pleased to be able to report, finally, that to
achieve a greater degree of business efficacy in the Province, amendments
are being drafted to the Workplace Health, Safety and Compensation Act
that will establish an electronic request registry for outstanding
assessments owed by an employer to the Workplace Health, Safety and
Compensation Commission. The amendments will provide a specified time frame
of 21 days in which the Commission must respond to a request by a solicitor
for the outstanding balance. If a response is not received by the solicitor
before the end of the time period the business assets may be sold free and
clear of the lien established by the Act and in the case of financing, the
lien will be subordinate to the amount financed.
3. Lobbyist Registration Act
The third initiative I would like to highlight is the proclamation into
force of the Lobbyist Registration Act. On February 5, 2003,
the then Leader of the Opposition, Mr. Danny Williams announced a number of
policies regarding ethics intended to restore people�s confidence in
Government. These policies included the regulation of lobbyists in this
Province.
In November 2004, Government consulted the people of the Province and
subsequently developed one of the strongest pieces of legislation for
regulating lobbyists in Canada. The Lobbyist Registration Act
was passed in the House of Assembly in December 2004. Government officials
have been working diligently to get the Registry up and running this Fall.
The Premier made a strong commitment to the people of Newfoundland and
Labrador to operate in a spirit of fairness, openness and accountability.
The lobbyist Registry will be a concrete example of transparency in
government decision-making in operation.
The Registry of Lobbyists will not inhibit people�s ability to reach out to
Government, but quite simply makes the process transparent. The people of
this Province have a right to know who is trying to influence Government
policy and for whom.
4. Support Orders Enforcement Act
The final initiative I want to reference is an overhaul of the Support
Orders Enforcement Act. Government hopes to introduce amendments to
the Support Orders Enforcement Act this Fall or next Spring that I believe
are long over due. As a result of debtors not making regular payments or,
indeed, no payments in some cases, there is an identified need to update and
improve the Support Orders Enforcement Act to permit the Support Enforcement
Agency to take more effective enforcement mechanisms to recover monies owing
as support payments and arrears. The proposed amendments have been developed
over the past number of years in light of difficulties encountered in the
enforcement of support orders and in light of changes and improvements in
the legislation of other provinces and territories.
My objective is to have these new mechanisms in place as soon as the
legislative process reasonably permits.
Conclusion
Chief Justice, I believe issues of access - access to the legal system and
access to Government - are crucial to all citizens of our Province.
Newfoundlanders and Labradorians want and expect an effective justice
system, one that reflects their values and aspiration and one that applies
equally in all respects in all parts of our Province. I believe that working
together we can make this happen. I want to thank you for the invitation to
address the Court this morning. And I look forward to continuing our
collaborative efforts, exercising our respective constitutional
responsibilities, to meet the challenges the future presents in building a
respectful and responsive justice system for the people of the Province.
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