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{{Short description|System of courts in Ontario, Canada}}
{{Use dmy dates|date=October 2021}}{{Use Canadian English|date=October 2021}}
{{Use Canadian English|date=October 2021}}
[[File:Brant Courthouse 2011 2.jpg|alt=Brant County Court House in Brantford, 2011|thumb|Brant County Court House in [[Brantford]], 2011]]
[[Ontario]], Canada, date from the early to mid-17th century. French [[Civil law (legal system)|civil law]] [[court]]s were created in [[Canada (New France)|Canada]], the colony of [[New France]], in the 17th century, and [[common law]] courts were first established in 1764. The territory was then known as the [[Province of Quebec (1763–1791)|province of Quebec]].<ref name=":0">{{Cite book|last=Wright|first=James V.|title=Aboriginal Ontario: Historical Perspectives on the First Nations|publisher=[[Dundurn Press]]|year=1994|isbn=978-1-55488-063-8|editor-last=Rogers|editor-first=Edward S.|page=[[iarchive:aboriginalontari0000unse/page/24/mode/1up|24]]|chapter=Before European Contact|oclc=244771106|editor-last2=Smith|editor-first2=Donald B.}}</ref>
{{Use dmy dates|date=October 2021}}{{Use Canadian English|date=October 2021}}
[[Dispute resolution]] in the territory that now constitutes the Canadian province of [[Ontario]] has been conducted according to [[Indigenous law]] from ancient times. French [[Civil law (legal system)|civil law]] [[court]]s were created in [[Canada (New France)|Canada]], the colony of [[New France]], in the 17th century, and [[common law]] courts were first established in 1764. The territory was then known as the [[Province of Quebec (1763–1791)|province of Quebec]]. A portion of that territory was designated [[Upper Canada]] by the [[Constitutional Act 1791]]. The colonial government of Upper Canada quickly abolished the French civil law, establishing English common law courts in [[private law]] matters almost immediately upon the colony's creation. These courts were reformed and reorganized on several occasions throughout the 19th century. Major changes included the creation of a court of [[Equity (law)|equity]], the [[Court of Chancery of Upper Canada]], in 1837, and the fusion of common law and equity in 1881. Periodic reform continued in the 20th century. In 1972, Ontario acquired another new court, the [[Ontario Superior Court of Justice#Divisional Court|Divisional Court]]. The current names and roles of Ontario's courts were largely settled by the 1990s.
 
A portion of the province of Quebec was designated [[Upper Canada]] by the [[Constitutional Act 1791]]. Almost immediately after the colony was created, Upper Canada's colonial government abolished the French civil law and established English common law courts in [[private law]] matters. The union of [[the Canadas]] had little effect on the court system in what became [[Province of Canada|Canada West]]. Periodic reform continued in the region's courts before and after Canada West was renamed Ontario upon [[Canadian Confederation|Confederation]] in 1867.
== Indigenous law ==
Evidence of human activity in what is now Ontario dates to approximately 9000 CE.<ref>{{Cite book|last=Wright|first=James V.|title=Aboriginal Ontario: Historical Perspectives on the First Nations|publisher=[[Dundurn Press]]|year=1994|isbn=978-1-55488-063-8|editor-last=Rogers|editor-first=Edward S.|page=[[iarchive:aboriginalontari0000unse/page/24/mode/1up|24]]|chapter=Before European Contact|oclc=244771106|editor-last2=Smith|editor-first2=Donald B.}}</ref> Summarizing the Indigenous approach to dispute resolution, with particular reference to the [[Mohawk people]], the authors of ''A History of Law in Canada'', volume 1, explain that, "All important matters had to be discussed openly, though after consultation some final council deliberations could occur in secret, at least among the Mohawk. Councils of elders consulted broadly before making decisions, and their authority usually rested on understanding 'public opinion,' while that of chiefs rested on the power of persuasion."{{Sfn|Girard|Phillips|Brown|2018|pp=29–30}}
 
Ontario's courts were reformed and reorganized on several occasions in the 19th century. Major changes included the creation of the [[Court of Chancery of Upper Canada]], a court of [[Equity (law)|equity]], in 1837, and the fusion of common law and equity in 1881. Periodic reform continued in the 20th century. In 1972, Ontario acquired another new court, the [[Ontario Superior Court of Justice#Divisional Court|Divisional Court]]. Its courts' current names and roles were largely settled by the 1990s.
In [[Anishinaabe]] law, governance and dispute resolution occur at councils and [[council fire]]s. Historian Heidi Bohaker describes a distinction [[Peter Jones (missionary)|Peter Jones]] drew between common councils, where people could resolve disputes and adopt and modify legal rules within a given territory; and general councils, where leaders of common councils would go to form and renew alliances between territories.{{sfn|Bohaker|2020|pp=17–18}} Both forms of council were "consensus-based deliberative bodies that were expected to receive and consider advice from the people they represented".{{sfn|Bohaker|2020|p=151}} Jones wrote in the early 19th century, but Bohaker notes that the council structure was much older—dating at least from the early to mid-17th century.{{sfn|Bohaker|2020|p=21}}
 
In [[Iroquois|Haudenosaunee]] law, the [[Great Law of Peace]] governs dispute resolution,{{Sfn|Williams|2018|p=9}} emphasizing, among other things, that matters that may result in disputes should be discussed and negotiated before they become disputes proper.{{Sfn|Williams|2018|p=|pp=104, 429}}
 
== Canada (New France) (1608–1763) ==
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In 1770, Governor [[Guy Carleton, 1st Baron Dorchester]], abolished the civil jurisdiction of the justices of the peace and directed all cases not exceeding £12 to be tried by the judges of the Courts of Common Pleas. The former Court of Common Pleas had sat both in Quebec and in Montreal, but now there were to be two independent courts: one in Quebec, the other in Montreal, limited in jurisdiction to their own districts.{{Sfn|Riddell|1915|p=882}} On 3 January 1775, Lord Dorchester was instructed to create a Court of King's Bench for the province for criminal cases; and, dividing the province into two districts, to establish a Court of Common Pleas for each district with jurisdiction over all civil cases that would be "cognizable by the Court of Common Pleas in Westminster Hall".{{Sfn|Riddell|1915|p=882}}
 
The [[Treaty of Paris (1783)|Treaty of Paris]] brought a large number of immigrants from the American colonies. This increase in population increased the demand for courts. In 1788, CarletonLord Dorchester addressed this problem by dividing the [[Province of Quebec (1763–1791)|province of Quebec]] into four judicial districts: Luneburg "to the mouth of the [[Gananoque River|River Gananoque]]", Mecklenburg to the [[Trent River (Ontario)|Trent River]], Nassau "to the extreme projection of [[Long Point, Ontario|Long Point]] into the [[Lake Erie]]", and Hesse west of Nassau. In each of these districts, a court of common pleas was established, with unlimited civil jurisdiction;{{Sfn|Riddell|1915|p=882}} and a court of quarter sessions, which handled "local government and criminal matters".{{sfn|Girard|Phillips|Brown|2018|pp=248–249}} The first Upper Canada legislature renamed them the "Eastern", "Midland", "Home", and "Western" districts, respectively.{{Sfn|Banks|1983|p=500}}
 
The courts of common pleas and quarter sessions were overseen mainly by judges without legal training.{{Sfn|Wylie|1983|p=7}} Common pleas judges modified the common law [[Jurisprudential reception|received]] from England to reduce some of the technicalities associated with the [[Form of action|forms of action]].{{Sfn|Wylie|1983|p=9}} They avoided using technical [[Law Latin]] or [[Law French]] terms, such as [[assumpsit]] or [[trover]], in favour of vernacular terminology.{{Sfn|Wylie|1983|p=9}} As compared to its English counterpart, [[civil procedure]] in the common pleas was "relatively simple and informal".{{Sfn|Wylie|1983|p=10}}
 
== Upper Canada (1791–1840) ==
[[File:Court of Requests - Ontario - Form Summons.jpg|alt=Form of a summons to the court of requests, 1830|thumb|Form of a [[summons]] to the court of requests, 1830]]
Upper Canadians were largely [[United Empire Loyalist|United Empire Loyalists]] who found the French civil law "alien".{{Sfn|Romney|1995|p=184}} Accordingly, the first statute of the legislature of Upper Canada<ref>[https://www.canadiana.ca/view/oocihm.9_10042_1/3?r=0&s=1 32 Geo III, c 1] (Upper Canada)</ref> abolished the [[Old French law|coutume de Paris]], a body of [[Civil law (legal system)|civil law]] that had governed non-criminal matters in the old province of Quebec before the Constitutional Act 1791. The second statute required jury trial in civil matters; juries were already required in civil trials.{{Sfn|Romney|1995|p=184}}
Before the [[Constitutional Act 1791]] was passed, what was to become [[Upper Canada]] was divided into four districts by [[Guy Carleton, 1st Baron Dorchester]], and a [[Court of Common Pleas|court of common pleas]] <!-- per WP:INTDAB -->with unlimited jurisdiction was instituted in each district.{{sfn|Riddell|1913|p=18}}
 
According to historian William N. T. Wylie, the two principal figures in the design of Upper Canada's court system were [[William Osgoode]], who became chief justice of Upper, then Lower, Canada; and Lieutenant-Governor [[John Graves Simcoe]].{{Sfn|Wylie|1983|p=14}} Osgoode and Simcoe aimed to create an Upper Canadian legal system that was centralized, professionalized, and based in the English common law.{{Sfn|Wylie|1983|p=14}}
Upper Canadians were largely [[United Empire Loyalist|United Empire Loyalists]] who found the French civil law "alien".{{Sfn|Romney|1995|p=184}} Accordingly, the first statute of the legislature of Upper Canada<ref>[https://www.canadiana.ca/view/oocihm.9_10042_1/3?r=0&s=1 32 Geo III, c 1] (Upper Canada)</ref> abolished the [[Old French law|coutume de Paris]], a body of [[Civil law (legal system)|civil law]] that had governed non-criminal matters in the old province of Quebec before the Constitutional Act 1791. The second statute required jury trial in civil matters; juries were already required in civil trials.{{Sfn|Romney|1995|p=184}}
 
The courts of common pleas were gradually abolished between 1792 and 1794.{{Sfn|Romney|1995|p=185}} In 1794,<ref>[https://bnald.lib.unb.ca/legislation/act-establish-superior-court-civil-and-criminal-jurisdiction-and-regulate-court-appeal 34 George III, c&nbsp;2] (Upper Canada)</ref> pursuant to the ''Judicature Act, 1794'',{{Sfn|Moore|2014|p=4}} the Court of King's Bench was created for the province.{{sfn|Riddell|1913|p=18}} It took up most of the actions that would previously have gone to the courts of common pleas, except actions for small amounts of money (no more than £15, later increased to £40 in some circumstances).{{Sfn|Banks|1983|p=502}} The Court of King's Bench, a [[superior court]],{{Sfn|Murray|2002|p=25}} was given the powers of the courts of [[QueenCourt of King's Bench (England)|King's Bench]], [[Court of Common Pleas (England)|Common Pleas]], and [[Exchequer of Pleas|Exchequer]] in England, and had as judges the chief justice of the province and two puisne justices.{{sfn|Riddell|1913|p=18}} These three judges were appointed by the imperial [[Colonial Office]] and were given substantial salaries.{{Sfn|Wylie|1983|p=15}}

The Court of King's Bench took up most of the actions that would previously have gone to the courts of common pleas, except actions for small amounts of money (no more than £15, later increased to £40 in some circumstances).{{Sfn|Banks|1983|p=502}} Actions between £2 and £15 were heard by District Courts, which sat in each of the province's four judicial districts. By contrast with King's Bench judges, District Court judges were appointed by provincial officials and the posts were not salaried. Their compensation came only from court usage fees.{{Sfn|Wylie|1983|p=15}}

Judges of the Court of King's Bench went on [[Circuit court|circuit]] throughout the province's four judicial districts in meetings termed [[assizes]]. The assizes handled civil and criminal matters, conducting civil [[Nisi prius|''[[nisi prius'']]'' trials and acting as courts of [[oyer and terminer]] and general gaol delivery.{{Sfn|Romney|1995|p=185}} Assizes initially met only once a year; they became biannual in 1837.{{Sfn|Murray|2002|p=25}} Decisions at the assizes could be appealed to a full panel of the Court of King's Bench, sitting at York (which became Toronto).{{Sfn|Romney|1995|p=185}}

Upper Canada's court of quarter sessions, officially the General Sessions of the Peace, handled some "less serious cases" that were not dealt with at the assizes.{{Sfn|Murray|2002|pp=24–25}} Finally, the courts of requests, presided over by [[Justice of the peace|justices of the peace]], met every other Saturday to handle [[Small claims court|small claims]]. (A "small claim", in early Upper Canada, was a claim for less than £2.{{Sfn|Wylie|1983|p=15}}) Their jurisdiction was limited to portions of each of the four judicial districts. TheyThe courts of requests were abolished in 1841.{{Sfn|Murray|2002|pp=25–26}}
 
The Court of King's Bench only had [[common law]] jurisdiction.{{Sfn|Banks|1983|p=501}} The lack of an equity court in Upper Canada, and the consequent absence of [[Equitable remedy|equitable remedies]] in the law of property, made it difficult for creditors to foreclose on mortgaged property and prevented debtors from exercising the right of [[equity of redemption]]. Without these remedies, property held as collateral for a loan was often seized by the local [[sheriff]], pursuant to a writ of ''[[fieri facias]]'', if a borrower defaulted—and sold at auction for rock-bottom prices.{{Sfn|Romney|1995|p=191}}
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The union of Upper Canada and Lower Canada into the [[province of Canada]], pursuant to the [[Act of Union 1840]], had little effect on the administration of justice in what was now termed Canada West. Canada East (formerly Lower Canada, now Quebec) and Canada West (formerly Upper Canada, now Ontario) had different courts, attorneys general, and solicitors general, as they had before union.{{sfn|Romney|1995|p=184}}
 
In 1849, a new court, the Court of Common Pleas, came into existence,{{Sfn|Kinnear|1954|p=128}}<ref name="1849act">[https://bnald.lib.unb.ca/legislation/act-more-effectual-administration-justice-court-chancery-late-province-upper-canada 12 Vict, c&nbsp;64] (Province of Canada)</ref> presided over by a chief justice and two puisne justices and with the same powers and jurisdiction as the Court of King's (now Queen's) Bench, while the number of puisne justices in the Queen's Bench was reduced to two. A second statute,<ref>[https://bnald.lib.unb.ca/legislation/act-establish-court-chancery-province-passed-4th-march-1837 7 William IV, c&nbsp;2] (Upper Canada)</ref> passed at the same time, created the [[Court of Chancery of Upper Canada]], for which the province's governor was the chancellor and a judge was to be appointed "the vice chancellor of Upper Canada". This was not found wholly satisfactory and accordingly the 1849 statute<ref name="1849act" /> reconstituted the court with a chancellor and two vice chancellors.{{sfn|Riddell|1913|pp=18–19}}

Finally, again in 1849, Ontario's system of county courts was created. The county courts replaced an analogous system of district courts, which operated from 1794 to 1849.{{Sfn|Banks|1983|p=492}} This change was presumably due in part to the fact that the old system of judicial districts—which, with increases in population since they were established, had now grown from four to twenty districts—was abolished by statute in 1849.{{Sfn|Banks|1983|p=511}} By that time, as the act abolishing the districts itself noted, the "boundaries" of districts "[had], in many cases, become identical with the boundaries of counties".{{Sfn|Banks|1983|p=511}}<ref>[https://bnald.lib.unb.ca/legislation/act-abolishing-territorial-division-upper-canada-districts-and-providing-temporary 12 Vict, c 78] (Province of Canada)</ref> The courts of Queen's Bench, Common Pleas, and Chancery continued in existence as separate courts, the two former as courts of common law, the last as a court of equity, until 1881.{{sfn|Riddell|1913|p=19}}
 
The 1849 statute abolished the court of appeal and established the Court of Error and Appeal to hear appeals from both the two common law courts and the court of chancery. This new court was composed of the judges of the three courts, like the [[Court of Exchequer Chamber]] in England.{{sfn|Riddell|1913|p=19}} The Court of Error and Appeal first sat at [[Osgoode Hall]] on 8 March 1850.{{Sfn|Moore|2014|p=3}} [[Christopher Moore (Canadian historian)|Christopher Moore]] describes it as "the first independent and professional court of appeal for the future Ontario".{{Sfn|Moore|2014|p=3}} Before this court was established, the final appeal of a decision within soon-to-be Ontario (some decisions could be appealed to the [[Privy Council of the United Kingdom|Privy Council]]) lay to the province's executive council; thus, executive and judicial functions were fused, in a manner typical in the common law world at the time.{{Sfn|Moore|2014|pp=6–7}} In 1874,<ref>[[iarchive:statutesofprovi1874p1onta/page/41/mode/1up|37 Vict, c&nbsp;7]] (Ontario)</ref> the Court of Error and Appeal was reconstituted and thereafter consisted of five judges who had no other duties than to sit as judges of the Court of Appeal.{{sfn|Riddell|1913|p=19}} Its name was changed to the Court of Appeal in 1876.{{Sfn|Banks|1983|p=520}}
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By the ''Law Reform Act, 1909'',<ref>[[iarchive:statutesofprovin1909onta/page/129/mode/1up|SO 1909 (9 Edw VII), c 28]] (Ontario)</ref> which came into force on 1 January 1913, the Supreme Court of Judicature for Ontario became the [[Supreme Court of Ontario]], with two branches: (1) the Appellate Division; and (2) the High Court Division. The former was only appellate while the latter was a court of original jurisdiction; however, any judge of the Supreme Court of Ontario could sit in any division or branch. The divisions of the High Court of Justice were abolished. The Appellate Division consisted of two divisional courts which had the same jurisdiction.{{sfn|Riddell|1913|p=20}} The names of the Appellate Division and High Court Division were changed to "[[Court of Appeal for Ontario]]" (its current name) and "High Court of Justice for Ontario", respectively, in 1931.{{Sfn|Banks|1983|p=532}}
 
Banks, referring to an unpublished paper by [[Horace Krever]], a justice of the High Court of Justice and Court of Appeal for Ontario,{{Sfn|Moore|2014|p=241}} says that "the structure of the Supreme Court of Ontario remained pretty much the same from 1931 until April 1972".{{Sfn|Banks|1983|pp=533, 563n175}} On 17 April 1972, a 1970 statute came into force implementing the recommendation in the [[McRuer commission|McRuer report]] (1968), a review of the Ontario court system, that the Divisional Court be created.{{Sfn|Banks|1983|p=535}} The Divisional Court had then, and still has, a complex statutory appellate and judicial review jurisdiction.{{Sfn|Banks|1983|p=535}}<ref>{{Cite book|last=Friedman|first=Tamar|title=Civil Procedure and Practice in Ontario|date=2021-06-19|publisher=Canadian Legal Information Institute|editor-last=Semple|editor-first=Noel|chapter=Divisional Court (Courts of Justice Act, ss 18–21)|id=2021 CanLIIDocs 2074|chapter-url=https://www.canlii.org/en/commentary/doc/2021CanLIIDocs2074}}</ref>
 
The ''Courts of Justice Act'', which presently constitutes Ontario's courts,<ref>{{Cite web|title=History of the Court|url=https://www.ontariocourts.ca/scj/about/history/|url-status=live|access-date=2021-10-06|publisher=[[Ontario Superior Court of Justice]]|language=en-US}}</ref> was first enacted in 1984, replacing the ''Judicature Act''.<ref name=":0watsonmcgowan2016">{{Cite book|last1=Watson|first1=Garry D.|title=Ontario Civil Practice|last2=McGowan|first2=Michael|publisher=Carswell|year=2016|isbn=978-0-7798-6575-8|page=[[iarchive:ontariocivilprac0000unse/page/5/mode/1up|5]]|issn=1184-7433}}</ref> By a 1989 amendment to the ''Courts of Justice Act'', Ontario's superior court, county courts, and district courts were consolidated into the Ontario Court (General Division), while the family and criminal courts formed the Ontario Court (Provincial Division).<ref name=":0watsonmcgowan2016" /><ref>{{Cite book|last=Cotter|first=W. Brent|title=In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession|publisher=[[University of British Columbia Press]]|year=2016|isbn=978-0-7748-3098-0|editor-last=Woolley|editor-first=Alice|page=214|chapter=Ian Scott|oclc=928679659|editor-last2=Dodek|editor-first2=Adam}}</ref> These names were changed to their current names—the [[Ontario Superior Court of Justice]] and [[Ontario Court of Justice]], respectively—by section&nbsp;8 of the ''Courts Improvement Act, 1996''.<ref>''Courts Improvement Act, 1996'', [https://digitalcommons.osgoode.yorku.ca/ontario_statutes/vol1996/iss1/27/ SO 1996, c 25], s 8</ref>
 
Special criminal courts for Indigenous offenders, known as ''Gladue'' courts following the decision of the Supreme Court of Canada in ''[[R v Gladue]]'' and sometimes as Indigenous persons courts,<ref>{{Cite news|last=Bruineman|first=Marg|date=2018-04-30|title=More Indigenous courts open across province|work=Law Times|url=https://www.lawtimesnews.com/news/legal-analysis/more-indigenous-courts-open-across-province/263023|access-date=2021-10-07}}</ref> have existed in Ontario since 2001, when the first such court was established in Toronto.<ref name=maurutto2016>{{Cite journal|last1=Maurutto|first1=Paula|last2=Hannah-Moffat|first2=Kelly|date=2016-12-20|title=Aboriginal Knowledges in Specialized Courts: Emerging Practices in ''Gladue'' Courts|journal=[[Canadian Journal of Law and Society|Canadian Journal of Law and Society/Revue canadienne droit et société]]|language=en|volume=31|issue=3|pages=451–471|doi=10.1017/cls.2016.35|s2cid=151316248|issn=0829-3201|doi-access=free}}</ref> These courts apply the criminal law of Canada but follow different sentencing principles for Indigenous offenders.<ref name=maurutto2016/> These principles emphasize [[Alternatives to imprisonment|alternatives to incarceration]] and the distinctive history of [[Indigenous peoples in Canada]].<ref name=maurutto2016/> ''Gladue'' courts do not conduct criminal trials, but may be involved in sentencing or bail hearings.{{sfn|Bakht|2005|p=240}}
 
== See also ==
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== Sources ==
{{refbegin}}
* {{Cite journal|last1=Bakht|first1=Natasha|date=June 2005|title=Problem Solving Courts as Agents of Change|journal=Criminal Law Quarterly|volume=50|issue=3|pages=224–254|url=https://heinonline.org/HOL/P?h=hein.journals/clwqrty50&i=240}}
* {{Cite book|last1=Banks|first1=Margaret A.|chapter=The Evolution of the Ontario Courts 1788–1981|year=1983|title=Essays in the History of Canadian Law|volume=2|pages=492–572|editor-last1=Flaherty|editor-first1=David H.|publisher=[[University of Toronto Press]]|doi=10.3138/9781442662919-012|jstor=10.3138/j.ctt13x1q47|isbn=978-1-4426-6291-9}}
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* {{Cite journal|last1=Romney|first1=Paul|title=Upper Canada (Ontario): The Administration of Justice, 1784–1850|year=1995|journal=[[Manitoba Law Journal]]|volume=23|pages=183–213|id=[https://www.canlii.org/en/commentary/doc/1995CanLIIDocs136 1995 CanLIIDocs 136]}}
* {{Cite book|last=Williams|first=Kayanesenh Paul|title=Kayanerenkó:wa: The Great Law of Peace|publisher=[[University of Manitoba Press]]|year=2018|isbn=978-0-88755-556-5|oclc=1061095159}}
* {{Cite book|last=Wylie|first=William N.T.|chapter=Instruments of Commerce and Authority: The Civil Courts in Upper Canada 1789–1812|year=1983|title=Essays in the History of Canadian Law|volume=2|pages=1–48|editor-last1=Flaherty|editor-first1=David H.|publisher=University of Toronto Press|doi=10.3138/9781442662919-004|isbn=978-1-4426-6291-9}}
{{refend}}
 
== Further reading ==
* {{Cite journal|last1=Harley|first1=Herbert|date=March 1914|title=Ontario Courts and Procedure|journal=[[Michigan Law Review]]|volume=12|issue=5|pages=339–361|doi=10.2307/1275323|jstor=1275323|hdl=2027/nyp.33433015243458|hdl-access=free}}
* {{Cite book|last=Zuber|first=Thomas G.|url=https://archive.org/details/mag_00002966|title=Report of the Ontario Courts Inquiry|publisher=[[Attorney General of Ontario|Ontario Ministry of the Attorney General]]|year=1987|isbn=0-7729-2643-3|oclc=20628852}}