Wednesday, December 30, 2015

The Evolution of the Justices of the Peace Review Council - Part I: Justices of the Peace Act, 1989



    Over the years the legislation dealing with the investigation and adjudication of judicial misconduct complaints against Ontario's justices of the peace has undergone significant and substantial changes. As the 1989 version of the Act shows the Review Council received and investigated complaints as well as conducted preliminary hearings under s.11(5) to determine whether an inquiry be held under s.12 to consider removal from office.  In this version of the Act there was no express requirement for a complaint to be in writing. There is also no complaints committee and there is no reference to the Statutory Powers Procedures Act. The Review Council was composed of three Provincial Court Judges, no justices of the peace and no community members.  
   There were no Hearing Panels as provided for by s.11.1(1) in the current Act which stipulates that the Chair of the Review(not the Attorney General) "shall establish a hearing panel from among the members of the Review Council to hold a hearing in accordance with this section."  The current Act stipulates that the Statutory Power Procedures Act applies to both complaints committees and hearing panels but expressly excludes s.4 and 28.  S.4 permits the parties and the tribunal to waive any procedural right on consent.  S.28 permits for "substantial compliance" as satisfactory performance of procedural requirements.  The requirement of a tripartite panel consisting of a judge, a justice of the peace and "a member who is a judge, lawyer or a member of the public" and a statutory quorum requiring all members of the panel are innovations which came about in the 2006 amendments brought in by the then McGuinty government. It would seem reasonable to conclude that these types of amendments to the statutory scheme were influenced by the Court of Appeal for Ontario's decision in Hyrciuk  v.  Ontario 30 O.R. (3d) 1.

   Like several other administrative tribunals the Justices of the Peace Act and the Justices of the Peace Review Council has been evolving to accommodate the evolving standards and attitudes in administrative law.  Concerns over fairness, bias and transparency have impacted the structure and procedures of virtually all Ontario's administrative tribunals.(see for example the creation of the Law Society Tribunal) The Ontario Human Rights Commission is a case in point. Indeed, none other than then human rights lawyer, Mr. R. Juriansz, now Justice of Appeal Juriansz of the Court of Appeal for Ontario lamented the appearance of unfairness in the OHRC's procedures in the following words to an Ontario Legislative Assembly Committee:

"My view is that the commission becoming the ally and the representative of complainants has the effect of permeating the commissions's entire process and demeanour. I refer to the 1991-92 annual report of the commission, in which it referred to itself as being 'technically in a neutral position between complainants and respondents."  I think respondents would agree with that description.  Even the Cornish task force noted that the commission itself expressed dissatisfaction over the confusion and conflict caused by its conflicting roles. The other effect of that is that because of the commission, in effect the government, taking one side of the case, respondents are overmatched and often choose to pay a settlement rather than incurring the great expense of trying to establish that they didn't discriminate."

 1989
c 46 Justices of the Peace Act, 1989

Ontario


 © Queen's Printer for Ontario, 1989
Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ontario_statutes


Bibliographic Citation
Justices of the Peace Act, 1989, SO 1989, c 46

Repository Citation

Ontario (1989) "c 46 Justices of the Peace Act, 1989," Ontario: Annual Statutes: Vol. 1989, Article 48. Available at: http://digitalcommons.osgoode.yorku.ca/ontario_statutes/vol1989/iss1/48


This Statutes is brought to you for free and open access by the Statutes at Osgoode Digital Commons. It has been accepted for inclusion in Ontario: Annual Statutes by an authorized administrator of Osgoode Digital Commons.


 



CHAPTER 46

An Act to revise the Justices of the Peace Act

Assented  to July 26th, 1989





Section
1.  Definitions
2.  Appointment  of  justices
3.  Oath  of office


CONTENTS
Section
15. Assignment of duties to presiding justice
16. Assignment  of  duties  to non-


4.  Designation  as  presiding  or non-
presiding justice
5.  Ex-officio justices
6.  Retirement
7.  Resignation
8.  Removal  from office
9.  Review Council
10. Functions
11. Investigation of complaints by Review  Council  .
12. Inquiry  by  provincial judge
13. Appointment of Co-ordinator 14. Functions of Co-ordinator


presiding justice
17. Jurisdiction  of justices
18. Salaries of part-time justices 19.  Directions
20.    Immunity  from liability
21.    Regulations
22.    Application of certain provisions 23-29. Complementary  amendments
and repeals
30. Commencement
31. Short title



HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:




Definitions


1.             In this Act,


"Co-ordinator" means the Co-ordinator of Justices of the  Peace appointed under section 13;  ("coordonnateur")

"non-presiding justice of the peace" means a person desig­ nated as a  non-presiding  justice  of  the  peace  under section 4; ("juge de paix  non-president")

"prescribed" means prescribed  by the regulations;  ("prescrit")

"presiding justice  of the peace" means a person designated as  a presiding justice of the peace under section 4; ("juge de paix-president")

"regulations" means the regulations made under this Act; ("reglements")




"Review Council" means the Justices of the Peace Review Council continued by section 9.("Conseil d'evaluation")

2.-(1) The Lieutenant Governor in Council, on the rec­ ommendation of the Attorney General, may appoint full-time and part-time justices of the  peace.

(2)    Every person who receives a salary as a justice of the peace in accordance with subsection 7 (2) of the Justices of the Peace Act immediately before this Act comes into force shall be deemed to have been appointed as a full-time justice of the peace and every other person who is a justice of the peace immediately before this Act comes into force shall be deemed to have been appointed as a part-time justice of the   peace.

(3)   The Lieutenant Governor in Council shall not appoint a full-time justice of the peace to be a part-time justice of the · peace unless the Review Council recommends the reappoint­ ment.

(4)    A justice of the peace shall not engage in any other remunerative work without the approval of the Review Coun­ cil.

3. Every justice of the peace, before beginning the duties of office, shall make the following oath or affirmation in French or in English:
I,  ................,  solemnly  swear  (affirm)  that  I  will  faithfully  and to the best of my skill and knowledge, execute the duties of a justice of the peace,  and  I  will  do so without  fear or favour,  affec­tion or ill will. So help me God. (Omit last sentence in an affirmation.)

4.-(1) The Lieutenant Governor in Council', on the recommendation of the Attorney General, shall designate every justice of the peace appointed after the coming into force of  this Act as a presiding justice of the peace or a non-presiding justice of the peace.

(2)    Every justice of  the  peace  who  is  authorized  to preside at the trial of an offence described in clause 16 (c) (provincial offences) immediately before this  Act  comes  into  force  and  has not attained the age  of  seventy  at  that  time  shall  be deemed to have been designated as a presiding justice of  the peace.

(3)    The Lieutenant Governor in Council, on the recommendation of the Review Council, may designate any other justice of the peace who is appointed before this Act comes into force and has not attained the age of seventy    as a presiding justice of the peace or a non-presiding  justice  of  the peace.

(4)    A person appointed as a justice of the peace before this Act  comes into force who  is not  designated  under subsection
(2) or (3) shall not exercise any authority or receive any remuneration  as a justice  of the ,peace.

(5) The Lieutenant Governor in Council shall not  change  the designation of a presiding justice of the peace to that of non-presiding justice of the peace.

5.     Every judge of the Supreme Court of Canada, the Fed­ eral Court of Canada, the Supreme Court of Ontario and the District Court of Ontario and every provincial judge is by vir­ tue of his or her office a justice of the peace and  also  has power to do alone whatever two or more justices of the peace are authorized  to do together.

6.     Every justice of the peace shall retire upon attaining the age of seventy years.

7.-(1) A justice of the peace may resign from his or her office by delivering a signed letter of resignation to the Attor­ ney General.

(2) The resignation takes effect on the day the letter is delivered to the Attorney General or, if the letter specifies a later day, on that  day.

8.-(1) A justice of the peace may be removed from office only by order of the Lieutenant  Governor in  Council.

(2)    The order may be  made  only if ,

(a)      a complaint regarding the justice of the peace has been made to the Review Council;  and

(b)      the removal is recommended, following an inquiry held under section 12, on the ground that the justice of the peace has become incapacitated or disabled from the due execution of his or her office by rea­ son of ,

(i)    infirmity,

(ii)   conduct that is incompatible with the execution of the duties of his or her office,  or

(iii)   having failed to perform the duties of his or  her office as assigned.


(3)   The order shall be laid before the Legislative Assembly  if it is in session or, if not, within fifteen days after the commencement of the next session.

9.-(1) The Justices of the Peace Review Council is continued and shall be composed  of,

(a)      the Chief Judge of the Provincial Court (Criminal Division) who shall preside over the Review Coun­cil;

(b)      the Chief Judge of the Provincial Court (Family Division);
(c)      the Co-ordinator;

(d)      a justice of the peace appointed by the Lieutenant Governor in Council; and

(e)      not more than two other persons appointed by the Lieutenant  Governor in Council.

(2) A majority of members of the Review Council constitutes a quorum and is sufficient for the exercise of all the jurisdiction  and powers of the Review Council.



Staff                       (3)  Such officers and employees  of the Review  Council  as
R.s.o. 1980,    are considered  necessary  may be  appointed  under  the Public
c. 418                    Service Act.



(4)  The Review Council may engage persons, including counsel, to assist it in its investigations.
10.-(1) The functions of the Review Council are,

(a)      to consider all proposed appointments and designations of justices of the peace and make reports con­cerning them to the Attorney   General;

(b)      to receive and investigate complaints against justices of the peace.

(2) No action or other proceeding for damages shall be instituted against the Review Council or its members or  officers or any person acting under its authority for any act done in good faith in the execution or intended execution  of  its or his or her duty.




Investigation              11.--{1)   When   the   Review   Council   receives   a complaint
of complaints
against a justice of the peace, it shall take such action to investigate the complaint, including a review of it with the jus­tice  of  the  peace,  as it considers advisable.




(2)    The Review Council may, if it considers it appropriate  to do so, transmit complaints to the  Co-ordinator.

(3)    The proceedings of the Review Council shall not  be  public, but it may inform the Attorney General that it has undertaken an investigation and  the  Attorney  General  may make  that  fact public.

(4)    The Review Council may order that information or documents relating to its investigation not be published or dis­ closed except as required by law.



Powers                    (5)  The  Review  Council  has all the powers  of  a commission
R.s.o.  1980,    under Part  II of the Public  Inquiries Act , which Part applies   to
c. 411                    the investigation  as if  it were  an inquiry under  that  Act.




Publication of  report


(6)    When the Review Council has dealt with a complaint regarding  a justice  of  the  peace,  it shall inform,

(a)      the person who made the complaint;  and

(b)      the justice of the peace,  if  the  complaint  was  brought  to  his  or  her attention,

of  its disposition  of  the complaint.

(7)    The Review Council may report its opinion regarding the complaint to the Attorney General and may  recommend,

(a)      that an inquiry be held under section  12;

(b)      that the justice of the peace be compensated for all or part of his or her costs in connection with the investigation.

(8)    A copy of the report shall be given to the justice of the peace .

(9)   The Review Council shall not make a report unless the justice of the peace was notified of the investigation  and given  an  opportunity  to  be  heard  and  to produce evidence.

(10)   The Attorney General may make all or part of the report public, if he or she is of the opinion that it is in the public interest to do so.



Transition                 (11)   An   investigation    commenced   under   section   8  of    the
R.s.o. 1980,   Justices  of  the  Peace  Act  but  not  completed  before  this Act
227
c.                               comes  into force  shall be  continued  in  accordance  with  this
Act by the Review Council as constituted under that   section.



Co-ordinator not to be reappointed


12.---(1) The Lieutenant  Governor in Council may appoint  a provincial judge to inquire into the question of whether a justice of the peace should be removed from  office.

(2)     The Public Inquiries Act applies to the inquiry.

(3)     The report of the inquiry may  recommend,

(a)       that the justice of the peace be  removed  from  office;

(b)       that the justice of the peace be compensated  for all or part of his or her costs in connection with the inquiry.

(4)     The report shall be  laid before  the Legislative  Assembly  if it is in session or, if not, within fifteen days after the com­ mencement  of  the  next session.

13.---(1) The Lieutenant Governor in Council, on the rec­ommendation of the Attorney General, shall appoint a provincial judge  as Co-ordinator of Justices of the Peace.

(2)    The Co-ordinator shall hold office for five years.

(3)     If a successor is not appointed within five years, the Co­ ordinator shall continue in office until the successor is appointed, but in no case shall the Co-ordinator hold office for more than seven years.

(4)     A Co-ordinator whose term of office expires under sub­ section (2) or (3) shall continue to hold the office of provincial judge  and  is entitled  to an annual salary equal to the greater  of ,

(a)       the current annual salary of a provincial judge;  or

(b)       the annual salary he or she received immediately before ceasing to be Co-ordinator.

(5)     A Co-ordinator whose term of office expires under sub­ section (2) or (3) shall not be reappointed  as  Co-ordinator.


14.-(1) The Co-ordinator has general supervision and direction over sittings of justices of the peace and the assign­ ment of their duties, subject to the direction of  the  Chief  Judge of the Provincial Court (Criminal Division) or, in mat­ ters relating to the jurisdiction of the Provincial Court (Family Division), the Chief Judge of that  court.


(2)             The Co-ordinator's authrity to assign duties includes authority to direct the times and places that justices of the  peace shall perform their  duties.

(3)             A part-time justice of the peace shall not act as a justice of the peace except in accordance with a duty roster estab­ lished by the Co-ordinator.
(4)            The duty rosters shall be made available to the  public.

(5)             Part-time justices of the peace shall submit to the Co­ ordinator, when required by the Co-ordinator, reports con­ taining the prescribed information on the duties they have performed.

(6)             Provincial judges shall assist the Co-ordinator in the supervision of justices and assignment  of their duties and in  the exercise of the Co-ordinator's other functions under this section, if the Co-ordinator or a chief judge so requests,  and  for the purpose  they have the Co-ordinator's  authority.

15.-(1) The following duties shall not be assigned to a presiding justice of the peace:
(a)      presiding   at   the   trial   of   an   offence   under the
Criminal  Code (Canada);

(b)      presiding at the trial of an offence under any other Act of the Parliament of Canada, unless the offence is prescribed as an offence to the trial of which a presiding justice of the peace may be assigned;


(c)      holding a preliminary inquiry under Part XVIII  of the  Criminal  Code (Canada);

(d)      exercising jurisdiction under section 67 (reading proclamation at riot), paragraph 537 (1) (b) or sub­ section 537 (2) or (3) (where accused  may be  mentally ill) or section 543 (remand where offence com­ mitted in another jurisdiction) of the Criminal Code (Canada).

(2)  Subsection (1) does not apply to adjournments.

16.  The following duties shall not be assigned to a non­ presiding  justice  of  the peace:

(a)       the duties described in section  15;

{b) presiding at the trial of an offence that is prescribed  as one to the trial of which a presiding justice of the peace may be assigned;

(c)       presiding at the trial of an offence under an Act of the Legislature or under a regulation  or  by-law made under the authority of such an  Act;

(d)      exercising jurisdiction under section 7 {plea of guilty with representations) or 9 or 19 (default conviction) of the Provincial Offences Act;

(e)       presiding at a hearing to determine whether a per­son should be released from or detained in  custody;

(f)       exercising authority to issue a warrant to levy a tax, toll or dues under,

(i)            section 33 of the Public Works Act (Canada),

(ii)              section 66 of the Lakes and Rivers Improve­ ment Act , or

(iii)                   subsection  387 (6) of  the Municipal Act;

(g)      determining whether a thing should be forfeited or held under,

(i)            section 8 of the Migratory Birds Convention Act  (Canada), or


Chap. 46                  JUSTICES  OF TIIE PEACE                                  1989

(ii)               subsection  8  (3)  of  the  National  Parks  Act
(Canada);

(h)      determining whether an  order  should  be  issued  under section 10 of the Mental Health Act .( examina­tion  by physician);

(i)        presiding at a hearing to determine a dispute  under,



R.s.c. 1985,                               (i)  section 205 of  the  Canada Shipping  Act ,
c. S-9

R.s.c. 1985,                              (ii)  section  11 of the Fisheries Act   (Canada),
c. F-14

R.s.o. 1980,                            (iii)  section 4 of the Master and  Servant  Act , or
c. 257

R.s.o. 1980,                             (iv)  section  25, 26 or 27 of  the Pawnbrokers  Act;
c. 372

(j)        a duty that is prescribed as one that shall not be assigned  to  a non-presiding justice.
r




Directions binding on justices


17.---(1) Justices of the peace have jurisdiction throughout Ontario.

(2)    Subject to sections 15 and 16, justices of the peace shall exercise the powers and perform the duties conferred or imposed on a justice of the peace by or under an Act of the Legislature or of the Parliament of  Canada.

(3)    Justices of the peace shall assist members of the public, at their request, in formulating informations in respect of offences.

18. The salary, if any, to which each part-time  justice  of  the peace is entitled shall be based on the Co-ordinator's determination of the justice's workload and calculated in accordance with the regulations.

19.---(1) The Co-ordinator may issue directions to justices  of the peace on questions of law and  procedure.

(2)    Justices of the peace shall follow a direction issued  under subsection (1) unless it has been disapproved by a court on an appeal or a review.


 

(3)   The Co-ordinator shall cause the directions to be pub­ lished in The Ontario Gazette.

20.    A justice of the peace has the same immunity from liability as a judge  of the Supreme Court.

21.-(1) The Lieutenant Governor in Council may make regulations,

(a)      prescribing offences under Acts of Parliament other than the Criminal  Code  (Canada)  in  respect  of  which a presiding justice of the  peace  may  be assigned  to preside  at a  trial;

(b)      prescribing the information to be  included  in  reports under subsection  14  (5);

(c)       prescribing the salaries of full-time justices of the peace and prescribing the manner in which the sala ries of part-time justices of the peace shall be calculated, including the factors to be taken into account and the method of calculation to be  used;

(d)      providing for the benefits to which full-time and part-time justices  of the peace are entitled;

(e)       providing for the payment of additional compensa­tion to full-time  and part-time  justices  of the peace
· for special assignments;

(f)       prescribing duties that shall not be assigned to a non-presiding justice of the peace.

(2)    A regulation made under clause (1) (c) or (d) may pre­scribe classes of full-time and part-time justices of the peace for the purpose of salaries and  benefits.

(3)    A regulation made under clause (1) (c) or (d) may provide that the duties performed, in the course of their public service employment, by justices of the peace who are also employed in the public service of Ontario shall not be consid­ ered in calculating their salary and benefits under this  Act.

(4)    A regulation made under clause (1) (d) may require jus­tices of the peace to contribute from their salaries part of the cost of a benefit and may fix the amount of the  contributions.


(5)    A regulation made under clause (1)  (d) may  provide that justices of the peace whose salaries are less than pre­ scribed amounts are not entitled to prescribed  benefits.


(6)    A regulation made under clause (1) (e) may be limited territorially.


22.----(1) Sections 4, 15, 16 and 18 and subsection 17 (2) do not apply in an area in Ontario until the Lieutenant  Governor  in Council by regulation provides that they apply in that   area.


(2)   The following apply in any area in which sections 4, 15, 16 and 18 and subsection  17 (2) do not  apply:


1.         Justices of the peace shall exercise the powers and perform the duties conferred or imposed  on a jus­ tice of the peace by or under an Act of the Legisla­ ture or of the Parliament of Canada when  so  directed by the Co-ordinator or a judge designated  by the Co-ordinator.


2.         Part-time justices of the peace shall be paid such fees, allowances and expenses as are prescribed under the Administration of Justice Act.


3.         Despite section 6, a part-time justice of the peace appointed before the day section 6 comes into force may exercise the powers and perform the duties of a justice of the peace after attaining the age of sev­ enty years when assigned to do so by the Co-ordina­ tor or a judge  designated by the Co-ordinator.



Regulations           (3)  The  Lieutenant  Governor  in  Council  may make regu- lations declaring that sections 4, 15, 16  and  18 and subsection 17  (2) apply in one or more areas of the  Province.

23.          1) Section 2 of the Commissioners for taking Affidavits Act, being chapter 75 of  the  Revised  Statutes of  Ontario,  1980, is amended  by  adding thereto  the following subsection:

Provincial judges, justices of the peace


(la) Every provincial  judge  and  every  justice  of  the  peace  is ex officio  a commissioner  for taking  affidavits  in  Ontario.


(2) Section 13 of the said Act is amended by striking out "notary public or justice of the peace" in the third line and inserting in lieu thereof "or notary public".

24.     Subsection  61  (3)  of  the  Courts  of  Justice  Act,  1984,
being chapter 11, is repealed.

25.     Paragraph 1 of subsection 5 (1) of the Election Act, 1984, being chapter 54, is amended by adding at the end  thereof  "or justices  of the peace".

26.     The Justices of the Peace Act, being chapter 227 of the Revised Statutes of Ontario, 1980, the Justices of the Peace Amendment Act, 1984, being chapter 8 and section 22 of tlie Equality Rights Statute Law  Amendment  Act,  1986,  being chapter  64,  are repealed.

27.     Clause 8 (2) (c) of the Legislative Assembly Act, being chapter 235 of the Revised Statutes of Ontario, 1980, is  amended by striking out "justice of the peace" in the first   line.

28.     Subsection 13 (1) of the Mining Act, being chapter 268 of the Revised Statutes of Ontario, 1980, is repealed.

29.--{1) Sections 1, 2, 3 and 5 and subsection 6 (1) of the Public Authorities Protection Act, being chapter 406 of the Revised Statutes of Ontario, 1980, are repealed.

(2) Subsection 7 (1) of the said Act is amended by striking out "against the justice of the peace who made the conviction or'' in the second and third lines.

30.             This Act comes into force on a day to be named by proclamation of the Lieute11ant Governor.


31.           The short title of this Act is the Justices  of  the  Peace Act,  1989.

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