Jessica Smith
Local municipalities and the Rainy River Law Association are protesting an Ontario Court of Justice decision to transfer the Rainy River district judge to Dryden. This will likely make the area “the only district in the province of Ontario that doesn’t have a sitting judge,” notes Mayor Dennis Brown.
Instead, the position will be transferred to the Kenora district, increasing its number of resident judges from three to four, while Thunder Bay has six.
The Ontario Court decided December 2 to not to replace Judge Thomas McKay, who is transferring to London in May.
For Atikokan, the change means court sittings here will be presided over by a judge travelling from the Kenora district. Until recent years, court here was handled by a judge who was a Fort Frances resident.
District mayors and the RR Law Association (RRLA) are making their objections clear to Regional Senior Justice for the Northwest Region Marc Bode, Ontario Court Chief Justice Annemarie Bonkalo, and Minister of the Attorney General John Gerritson, and are requesting a meeting in Fort Frances to discuss the matter. They say municipalities and First Nations communities will face delays in accessing criminal court and family law proceedings, and increased costs for clients; Kenora district judges will have to travel more; and law firms will have more difficulty attracting lawyers to the district.
The loss of a judge in the Rainy River district could mean vital court services are delayed (Bode has indicated gaps in service could be up to two weeks) and result in people held in custody unnecessarily, noted RRLA president Barbara Morgan.
Mayor Brown noted district residents have already felt the repercussion of losing a resident judge here since Justice McKay moved back to Dryden shortly after his appointment. Given the distance between communities and winter travelling challenges “it is unacceptable to be without an appointee as District of Rainy River courts are often cancelled and re-scheduled with limited notice. This increases legal costs for our residents and limits access to justice. District municipalities and area First Nations deserve and require better [service], not further erosion,” he said.
While court is currently held weekly in Fort Frances, that may be reduced to twice per month, given the judicial transfer. “Someone who may be detained in custody for very minor offences because they have a record but is something that could be resolved, could end up in jail for two weeks or longer, because you can’t plead guilty [without appearing before a judge],” said Morgan.
She added the change is a further loss of access of vital services to the district of Kenora, following the trend of children’s services, legal aid services, and OPP dispatch.
Mayor Brown and his counterparts in Fort Frances, Rainy River, Emo and Morley, along with law association members, met twice via teleconference with Bode over two days, January 5 and 6, but were unable to get the decision reversed or delayed.
“Our first priority was to ask Justice Bode to come to Fort Frances to meet with all the municipalities,” said the mayor. During a two and a half hour teleconference on the second day, Bode agreed to pass along their concerns to his superior and Mayor Brown said they were anticipating a response shortly. Still, he acknowledges the Court’s “position seems pretty strong,” and he isn’t optimistic it will change.
This district has seen an ongoing reduction in judicial services since 1997, with court sittings reduced from twice per month in Atikokan to every second month, and in Rainy River from twice per month to five times per year, said Morgan. “The court sittings here have been incrementally reduced over the past ten years and more so in the course of the last three to five years, particularly for Atikokan and Rainy River.”
The district lost its Superior Court justice a number of years ago, and then in 2007 the region also lost its Kenora-based Superior Court judge; Superior Court is now handled out of Thunder Bay. (These ‘higher courts’ have federal jurisdiction in criminal matters, hear certain criminal cases, and hear appeals of Ontario Court judge’s decisions. Ontario Courts handle all criminal code matters and family court issues relating to child custody and access).
As it stands currently, family court is held in Fort Frances every six to seven weeks, and family law cases are already backlogged in the district. Further reduction in judicial services will only increase the backlog, requiring more proceedings to be conducted by video link, she said. That is already occurring, particularly to accommodate Superior Court judges from Thunder Bay or Kenora, said Morgan. While video can be used for many court proceedings, except trials, “justice by video is not acceptable,” she added. In at least 50% of the family law video conferences, technical problems and communication difficulties make it problematic for a judge to be able to clearly witness and maintain control of a satellite court’s proceedings, said Morgan.
During the January 6 teleconference, First Nations leaders expressed concern that video and phone services will further alienate Aboriginal residents, who often experience cultural barriers within the court system.
In last month’s written response to the concerns shared by the municipalities and the law association, Bode stated it was simply a matter of locating judges in the closest proximity to the majority of their workload. The decision was based on the number and severity of charges, and the percentage of the charges that required trial time. “The change in base courts will simply make it easier for the court to distribute the judicial sitting time allocated to any community,” he said.
As it now stands, a Fort Frances-based judge would be required to provide over 50% of his/her court sitting time outside the Rainy River district. “As a court we need to minimize the judicial time consumed in travelling and spread the responsibility for judicial travel among the judiciary,” Bode continued. “By identifying either Dryden or Kenora as the next judge’s base court, we are putting the next judge closer to where the greatest current need for judicial services exists. I want to stress once again that it will be the need for judicial services in the district of Rainy River and not the location of any judge’s base court that will determine judicial sitting time in the district.”
Any changes in actual court sitting schedules would require discussion with the district’s local justice committee (comprised of representatives of the law association and agencies who have a stake in the justice system), he added.
Mayor Brown is opposed to basing the decision to relocate the appointment on the basis of crime stats. “This is not the time for this undertaking, as significant growth related to considerable mining development in our area is taking place,” he wrote to Bode. “All districts in the province of Ontario should have at least one resident Judge.”
Morgan cited the number of charges handled by the Ontario Court of Justice from October, 2010 to October, 2011: in Fort Frances, Rainy River and Atikokan, a total of 1,346 charges; in Dryden, Sioux Lookout and several First Nations communities, 4,700; in the Kenora district, including Jaffray Mellick, Keewatin, Red Lake, and FNs, 6,200 charges.
Morgan said that given that the total 2009-10 charges for the Kenora and Rainy River districts were 11,824, while the Thunder Bay district had 11,460, Kenora-Rainy River should have two additional judges to equal the six judges Thunder Bay has. Keeping the Fort Frances resident judge would see the west end of the district receive equal coverage.
Family law proceedings have been reduced by 47% in the Kenora district while demand has only dropped 7% in Rainy River, she added.
Regardless of stats and travel costs, essential services within a community or district cannot be allocated strictly on usage, said Morgan. “If that was the case, any service not justified by a costs benefit analysis wouldn’t be provided. Many services have to be subsidized in order to have a viable community.”
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