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Page 6 OctOber 27, 2014 • Law Times www.lawtimesnews.com COMMENT ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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We assume a hierar- chical structure of appeal is necessary to maintain certainty in the law while per- mitting the higher courts to make new law. But appeals don't have deep roots in the common law tradition. Virtually everything we take for granted about appeals — that appellate judges should be separate from the executive and the trial courts, that appellate panels should contain an uneven number of judges, and that decisions on the liberty of the subject require an appeal — developed relatively recently in Ontario's history. These matters are the subject of Christopher Moore's new book, The Court of Appeal for Ontario: Defining the Right of Appeal in Canada, 1792-2013. The book is a profound and engaging study of Canada's most inf luential pro- vincial appellate court. The English law Ontario inherited provided some means of appealing civil decisions but none with regard to crimi- nal rulings. The jury's decision was sacred and would remain so for a long time. Even capital sentences were unchallengeable, although the prerogative of mercy was available to com- mute or expunge such a pun- ishment. Under the 1794 Judicature Act, parties could bring appeals to the "Court of Appeal" com- posed of some members of the executive council and a judge. This fusion of functions wasn't unusual in Britain. The lord chancellor had executive, leg- islative , and judicial functions. But the model was increasingly unpopular in Upper Canada. Responsible government brought about the first modern court of appeal composed entirely of professional judges. However, under the 1849 act creating it, this Court of Error and Appeal didn't constitute a distinct bench. Rather, the nine trial judges of the courts of Queen's Bench, common pleas, and chancery (with three judges each) would form the court. As very few appeals then went to the Privy Council, it was effectively the highest court in Canada West and later Ontario until the creation of the Supreme Court of Canada in 1875. Oliver Mowat reformed the court con- siderably in 1874, reducing its size but ap- pointing judges who weren't part of a trial court. However, concerns that the court wouldn't be busy enough meant the ap- pellate judges might also do trial work. In 1876, the court dropped the word "error" from its title as it took on the name it now bears. The new court would have only four members, creating a high threshold for overturning a trial decision. Three votes were necessary to reverse a decision; a tie led to dismissal of the appeal. It wasn't until 1931 that odd-numbered panels became obliga- tory and a simple majority became suffi- cient to overturn a decision at trial. The court's caseload was almost en- tirely civil until 1892. While the trial judge, and later the attorney general, could reserve a point of law for a decision by the Court of Appeal, it wasn't until 1923 that the accused obtained a right of appeal on points of law. Moore follows the received wisdom in locating the 1970s as the watershed in the modern history of the Court of Ap- peal. A raft of new appointments with fresh ideas led it to embrace a more re- sponsive approach to the law centred on legal modernism rather than the old black-letter philosophy. In modern times, Moore notes, the appeal court inf luences "other Canadian appeal courts much more than any American state appeal court has done for other state courts." Despite this enviable record, the book ends on a cautionary note. The number of appeals has declined considerably since the 1990s, thereby inhibiting the court's ability to develop the law. What are the causes? The f light to private arbi- tration and access to justice issues loom large. Moore cites Justice John Laskin as stating that "courts cannot compete with the arbitrators for the privacy, speed, and the ability to choose one's arbitrator." And former chief justice Warren Win- kler, who commissioned the book, notes that if lack of means filters out cases at the trial level, they'll never get to the ap- peal court. Whatever the challenges ahead, it's past time that the Court of Appeal had its history mined by such a talented explorer. Hats off to Moore for another stellar con- tribution to our legal history. LT Philip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail ad- dress is pgirard@osgoode.yorku.ca. A solid plan for reform I t's certainly understandable that some people don't like a pro- posal to create up to five Greater Toronto Area legal clinics from 16 existing organizations. The plan, touted by a steering committee looking to reform the clinic system in the region, would certainly cause disruption. Some people would lose their current jobs and clients would un- doubtedly find the changes difficult given the new locations. Many of them can't afford to travel very far to access legal services. At the same time, the opponents are right to suggest that local ser- vices are generally better. Community is key to the clinic system, and there's little doubt three large organizations for Toronto itself, plus one each for Peel and York regions, would be more distant from the people they serve. But with government finances under pressure, it's clear the idea of enhanced neighourhood services isn't realistic at this time. The steering committee that looked at the clinic system was emphatic in its recent report that the current framework isn't ideal either. The catchment areas don't always match the need where poverty is high- est, and many of the existing organizations are too small to provide a full array of services efficiently. As such, it outlined a proposal to allow for greater economies of scale by having larger clinics while continuing to serve individual neighbourhoods through local access points. The details are scant, but the plan could include having staff from the larger organizations rotate around various community agencies in their catchment ar- eas to provide services. The idea is to maintain local services while improving efficiency. In essence, proponents hope to do more with similar levels of funding. The critics raise valid points and doubts about whether that will happen and note a better solu- tion would be to increase funding across a cash- starved clinic system. But as that's not likely to happen, the steering committee has done the next best thing by com- ing up with a proposal that has some promise of creating a system that operates more effectively with existing budgets. And with several clinics in favour of the proposal or at least participating in the discussions at the moment, it's clear there's support. The challenge for the proponents will be to reassure people about the plans for continued local services. They should provide more details on that, but for the moment the plan they've put forward, while not a panacea, is a solid one. — Glenn Kauth That's History Philip Girard

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