ARTICLE ● Does a judge’s physical location matter? ● THE LAWYER'S DAILY Mar 5, 2021
Does a judge’s physical location matter?
Friday, March 05, 2021 @ 12:27 PM | By Nathan Baker
In the past weeks, there have been suggestions that judges of both the Ontario Superior Court and the Ontario Court of Justice have been hearing matters while outside the country. This is causing great debate about whether this should be allowed and whether it even can be allowed.
The use of technology to bring greater efficiencies to the courts during the global pandemic has been nothing short of transformative. Courts are supporting each other in ways that only a year ago were undreamt of. Access to a courtroom with a presiding judicial officer is one bottleneck that can slow proceedings. Programs that have existed to allow courts to assist one another, like the bail assist program in British Columbia, ensure that if one court completes its list early, it can assist other courts remotely to reduce the time until a bail hearing is heard.
Prompt access to a courtroom is essential, especially at the bail stage where justice delayed is very much justice denied.
Superior courts have inherent jurisdiction while provincial courts are creatures of statute. As a result, the powers of each level of court may need to be considered separately. In Endean v. British Columbia 2016 SCC 42, the Supreme Court considered the issue of superior courts sitting outside their territorial jurisdictions in relation to a civil matter. In that case, the Supreme Court considered a matter where the particular court had both personal and subject-matter jurisdiction and involved litigation wholly within Canada. However, the findings of the court may be instructive on certain issues.
The Supreme Court accepted a “deep-seated sense” in the common law that courts conduct their business within their geographical boundaries.” Issues relating to “concerns about sovereignty, dignity of the courts or extraterritorial exercise of coercive powers” were highlighted as those to be considered when determining the appropriateness of judges sitting extraterritorially. In the case, it was found that the courts could hold a hearing outside their territory as the concerns identified were not engaged.
The majority decision commented that before resorting to inherent jurisdiction that courts should look to their statutory authority. In Endean, the Class Proceedings Act in each province gave discretionary powers to sit outside their jurisdiction. That power is not replicated in the same way in criminal proceedings. For example, s. 17 of Ontario’s Justice of the Peace Act limits their jurisdiction to Ontario. Section 478 of the Criminal Code states that “a court in a province shall not try an offence committed entirely in another province” except in very limited circumstances such as a plea in another province with the consent of the accused.
The philosophical question is where is the location of a court when it is held virtually? Section 714.1-714.6 of the Code allows witnesses to appear virtually. Section 650 allows the accused to appear virtually. Generally, the judicial officer is the court. If a judge is not located in a physical courtroom in a matter, then do they cease to be a court in that province if they are not present themselves? The issue of whether public confidence in the administration of justice can be maintained where judges are not present is an entirely larger matter that needs to be considered as well.
There is great utility in having judges who are resident to a jurisdiction. Their knowledge of the region and the issues facing a particular region can be especially helpful when dealing with trends in the criminal justice system distinct to that region. Local issues can be addressed more intimately this way. While judges appointed in a province can sit anywhere in that province, it is preferable to have a judge who is familiar with the issues facing the local community.
Judges assigned to a location can have greater interaction and understanding of programs available there. They build relationships between the court and stakeholders, from service providers to Indigenous communities and beyond. The question of whether a judge can hear a matter in a location they are unfamiliar with will likely be answered differently than whether they should. In a system that is as overworked as Ontario’s court system, compromises are required.
However, while it may be tempting to accept the first available court, a better resourcing of courts would allow them to achieve the better practice of having judges locally available.
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