History of Justices of the Peace

Last week's decision in Association of Justices of the Peace of Ontario v. Ontario (Attorney General), 2008 CanLII 26258 (ON S.C.) allows Justices of the Peace to sit until 75 years old. The result is unsurprising particularly in light of the important judicial office they hold.

Justices of the Peace have jurisdiction throughout the province. They hear virtually all provincial offences trials under a myriad of statutes. A provincial offences trial court presided over by a Justice of the Peace is a court of competent jurisdiction under the Charter and a Justice of the Peace has jurisdiction to grant the full range of Charter remedies.

The jurisdiction and work of Justices of the Peace includes:

(a) conducting judicial interim release (bail) hearings under the Criminal Code;

(b) determining whether to issue search warrants and warrants to enter a dwelling place under the Criminal Code, and other federal and provincial legislation;

(c) receiving criminal informations (from police and private individuals) and considering whether process will issue (i.e., the laying of criminal charges and issuing a summons or warrant for the arrest of the accused), including conducting formal pre-enqutes pursuant to s. 507.1 of the Criminal Code;

(d) hearing and considering applications for publication bans;

(e) issuing warrants for the arrest of an offender for the purpose of complying with Christopher's Law (Sex Offender Registry), 2000;

(f) issuing warrants to apprehend a child under the Child and Family Services Act;

(g) making orders under the Mental Health Act for examination of a person by a physician;

(h) presiding over criminal matters involving adjournments and remands; and dealing with ex parte matters under the Provincial Offences Act, including pleas of guilty with an explanation, failures to respond to offence notices and extensions of time to pay fines;

(i) presiding over trials prosecuted under the Provincial Offences Act, with respect to offences under dozens of provincial statutes such as the Occupational Health and Safety Act, the Environmental Protection Act and the Highway Traffic Act. This may include adjudicating pre-trial motions, determining the admissibility of evidence, hearing and determining constitutional issues and granting remedies pursuant to section 24 of the Charter, determining guilt or innocence and imposing fines or incarceration;

(j) presiding over trials prosecuted under federal legislation pursuant to the Contraventions Act, such as offences under the Fisheries Act, the Canada Shipping Act, the Immigration and Refugee Protection Act, the Motor Vehicle Transport Act, the Indian Act and the Migratory Birds Convention Act;

(k) putting accused to their elections of mode of trial under the Criminal Code; and

(l) hearing and determining trials of municipal by-law infractions.

Clearly the role of the Justice of the Peace, which is only partly described above, is challenging and of considerable judicial importance.

The decision described the history of the office as follows:

[16] The office of Justice of the Peace in England is almost 700 years old and its history in Ontario dates to before Confederation; but the past forty years have seen striking changes in the functions, authority and significance of the office in this province. To put these changes in context, I will review the evolution of the position, focusing on the more recent developments in Ontario.

[17] In 1327, Edward III ordained that good men and lawful should be appointed for maintaining and keeping of the peace in each county. In 1344 these keepers of the peace were given statutory authority to act jointly with others wise and learned in the law to hear and determine felonies and trespasses against the peace and to inflict punishment. The keepers of the peace thus became justices of the peace, although the latter term was not officially used until 1360 when a statute was passed entitled What sort of persons shall be Justices of Peace; and what authority they shall have.

[18] The office of Justice of the Peace was imported into Canada with the introduction of English criminal law into the Province of Quebec by Royal Proclamation in 1763 and was extended into what is now the Province of Ontario by the Quebec Act of 1774.

[19] The role was further formalized when the province of Upper Canada was created in 1791 and confirmed in 1800 when the Legislature adopted the English criminal law of 1792 as the criminal law of the province. The justices of the peace acquired the same extensive powers and authority enjoyed by their English counterparts. However, subsequent to Confederation and over time, the powers of justices of the peace were taken over by magistrates and judges.

[20] The origins of the present statute pre-date Confederation: An Act Respecting Qualifications of Justices of the Peace, C.S.C. c. 100, which was revised, amended and re-enacted numerous times and later consolidated by 1952, c. 47. The 1952 statute, although periodically amended and revised, formed the basis of the justice of the peace system that existed in Ontario up to the mid-1980s.

[21] The 1952 statute, like all its successors, provided that every judge of the Supreme Court of Canada and every Superior Court judge in Ontario is ex officio a justice of the peace. It provided for the appointment by the Lieutenant Governor in Council of a person, other than a barrister or solicitor, as justice of the peace following examination with regard to his or her qualifications by a judge of the county or district court. A justice of the peace was authorized to take informations or issue search warrants or summonses or warrants returnable before a magistrate and could hear and determine prosecutions under municipal by-laws. The statute also contemplated that a justice of the peace might hear charges where authorized to do so under the Criminal Code or the Summary Convictions Act.

[22] In 1973, the Act was amended by the Justices of the Peace Amendment Act, S.O. 1973, c. 149, to provide for a Justices of the Peace Review Council to review the conduct of justices of the peace, to receive and investigate complaints concerning misbehaviour or neglect of duty and to make appropriate recommendations to the Attorney General. A Chief Judge of the provincial court was empowered to suspend a justice of the peace from the performance of his or her duties during an investigation and pending further direction of the Attorney General.

[23] The Justices of the Peace Act, R.S.O. 1980, c. 227 looked much like the 1952 re-enactment. Justices of the peace were now appointed by the Lieutenant Governor in Council after examination by a provincial court judge. They exercised the powers conferred upon them by provincial, federal or municipal law under the direction of the Chief Judge of the criminal or family division of the provincial court and they were under the general supervision of the Chief Judges of that court. There was no retirement age specified in the statute or in its predecessors the commission of the justice of the peace was for life, subject to revocation by Order-in-Council.
...
[25] In 1984, the Ontario Legislature enacted the Justices of the Peace Amendment Act, 1984, S.O. 1984, c. 8, to give effect to some of the recommendations of the Mewett Report. ... Part-time justices of the peace continued to serve at pleasure. The amendment also authorized regulations to be made to provide for benefits for full-time justices of the peace, including leaves of absence, vacations and sick pay. It also established a process for the removal of a justice of the peace due to incapacity by reason of infirmity, conduct incompatible with the office, or failure to perform the duties of the office, after an investigation of a complaint by the Justices of the Peace Review Council.

[26] The legislation underwent further revision in 1989 by the Justices of the Peace Act, 1989, S.O. 1989, c. 46. ...

[28] The Justices of the Peace Act, 1989 provided that a justice of the peace was not to engage in other remunerative work without the approval of the Review Council. It contemplated that a justice of the peace could be either full-time or part-time and could be either a presiding justice of the peace or a non-presiding justice, with the latter having less expansive responsibilities and jurisdiction. Those already authorized to preside at the trial of provincial offences were deemed to be presiding justices of the peace. The powers and composition of the Review Council were expanded and it was authorized to consider proposed appointments and designations of justices of the peace and to make reports concerning them to the Attorney General. The powers and procedures of the Review Council in investigating complaints were expanded. There was also provision for the appointment of a provincial judge as Co-ordinator of Justices of the Peace with responsibility for the supervision and direction of justices of the peace.

[29] In 2000, the Ontario government undertook a further process of review and reform of the justices of the peace system.
...
[30] The Access to Justice Act, 2006, S.O. 2006, c. 21 was enacted in October of that year as part of a comprehensive reform of aspects of the justice system in Ontario, including the justice of the peace system. The Act preserved the concept of per diem justices of the peace, to provide flexibility in the hearing of criminal and provincial offences, but put an end to the concept of presiding and non-presiding justices; henceforth, all justices of the peace were to be presiding justices. In an apparent effort to improve the quality of the bench, there were enhanced minimum qualifications for justices of the peace, which, with some exceptions, required that an applicant have a university degree, comparable college diploma or equivalent. The statute established a Justice of the Peace Appointments Advisory Committee to ensure the independent review of applications for appointment. The composition and responsibilities of the Review Council were expanded. The Act upgraded the complaints process and also made specific provision for the establishment of standards of conduct for justices of the peace, which would include the goals of

(a) recognizing the independence of justices of the peace;

(b) maintaining the high quality of the justice system and ensuring the efficient administration of justice;

(c) enhancing equality and a sense of inclusiveness in the justice system;

(d) ensuring that conduct of justices of the peace is consistent with the respect accorded to them; and

(e) emphasizing the need to ensure the on-going development of justices of the peace and the growth of their social awareness through continuing education. The process for removal from office was confirmed: it could only take place after a complaint to the Review Council, a hearing, and a recommendation to the Attorney General that the justice of the peace be removed.
...
[32] It can be seen from this review that the office of justice of the peace has undergone significant evolution in Ontario in the past forty years. In 1984, in a case which I will examine shortly, Reference Re. Justices of the Peace Act reflex, (1984), 48 O.R. (2d) 609 (C.A.), the Court of Appeal endorsed a statement of the motions judge, at (1984), 46 O.R. (2d) 484 at 490, that the role of the justice of the peace has been substantially enhanced in the last decade or more. Since that time, with the changes made as a result of the Mewett Report in 1989 and by the Access to Justice Act, 2006, the qualifications of the bench have been enhanced, the tenure of the justices has been made more secure and the processes and procedures surrounding the office have been made more professional, more formal and, in a word, more judicial. This evolution reflects the important role played by justices of the peace in the administration of justice in the province and the significance attached to that role by the Legislature. It shows a desire to attract highly qualified applicants to the position and to provide a structure, compatible with their judicial independence, to support the performance of their responsibilities.