Friday, August 23, 2013

Justice and Justices of the Peace

From the current edition of the Law Times, an Ontario newspaper for the legal profession: 

Judges and justices of the peace have their remuneration determined in a peculiar way.  Contract negotiations are forbidden and the government is not permitted merely to establish a pay scale by fiat.  Instead, a commission is established to consider what is fair and reasonable and, after hearing from witnesses and reading submissions, that commission recommends a compensation package.  The idea is that an independent body is responsible for what judicial officers get paid.


The next commission for justice of the peace compensation starts this fall.  There will likely be many witnesses and considerable debate over the proper compensation for a justice of the peace.  At present justices of the peace are paid less than half the income of a provincially appointed judge.


The role of justices of the peace is not trivial.  Unlike American movie descriptions, Ontario's justices of the peace seldom perform marriages; rather they work in the trenches of the criminal justice system.  Justices of the peace decide daily on the liberty of the subject and search and seizure issues.


About 54 per cent of cases in Ontario -- around 300,000 in the last year for which figures are available -- are criminal cases. All of them are dealt with, at least in part, by about 350 justices of the peace. Justices of the peace preside over virtually all bail hearings in the province and the majority of criminal remand courts. In the vast majority of cases, justices of the peace decide if criminal charges can go ahead and whether to deny or issue search warrants.  Finally, justices of the peace preside over and conduct trials in provincial offences matters, such as those under the Highway Traffic Act, and municipal bylaw infractions, such as those under the Liquor Licence Act.


Of course, not everyone likes the decisions made by justices of the peace.  A search warrant that finds drugs tends to be resented by a drug dealer.  Someone denied bail looks to blame the person refusing bail.  It is easy to find someone disgruntled by a decision of a justice of the peace.


Recently there have been a number of rather harsh media attacks on justices of the peace.  It may not be a coincidence that these attacks come now in light of the upcoming compensation commission.  Leading newspapers have written on cases being "botched" by justices of the peace, justices of the peace being "not up to the job".  Last year a private members bill tabled in the Ontario Legislature proposed major changes to justice of the peace qualifications.   Each story and the proposed legislation focus on the fact justices of the peace do not have to have a law degree – a factor referred to at great length by the government when making submissions that justices of the peace should be paid less than half that of provincial judges.


In fairness, justices of the peace do make mistakes – and sometimes serious mistakes.  Justices of the peace, like lawyers, doctors, plumbers and everybody else are imperfect.  But that is inevitable when dealing with human beings.  And when justices of the peace do make mistakes they are not related to paper qualifications.  Every day the Court of Appeal for Ontario hears up to a dozen appeals from judges, all of whom have law degrees and stand at the top of their profession; no one questions their eminent qualifications.


While justices of the peace do not have to have legal training many do and, regardless, all new appointments undergo a rigorous training cycle. After initial training justices of the peace have a continuing legal education process.  Justices of the peace have to have a post secondary degree or diploma and years of work in business or the professions. Having been involved with the ongoing legal education of justices of the peace, I can attest to their professionalism and dedication to knowing the law they apply.  Justices of the peace are capable and competent.


James Morton is counsel the Association of Justices of the Peace for Ontario and will represent them at the next Compensation Commission.  He is a past president of the Ontario Bar Association and practices law in Ontario and Nunavut. The opinions expressed are solely his own.

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