Is a retired part-time Provincial Court Judge competent to chair a Hearing Panel of the Ontario Judicial Council or Justices of the Peace Review Council ? In using the word competent I refer not to a judge's individual qualifications but rather to their legal status in law.
To answer this question one would have to look to the pieces of legislation which touch on the very important question touching on judicial independence. The first piece of legislation is the Courts of Justice Act. This is the statute which governs the Ontario Court of Justice and its judges. This statute provides that "part-time judges" are provincial court judges. However, there is a condition. Part-Time Judges require the consent of the Attorney General to sit under section 44(2) of the legislation. The other applicable piece of legislation is s.8(10) of the Justices of the Peace Act. This provision vests the Chief Justice of the Ontario Court of Justice with jurisdiction to appoint "a judge or a justice of the peace who is not a member of the Review Council to be a temporary member of a Hearing Panel. A proper reading of s.11.1(1) makes it clear that a hearing panel can be composed of two judges - one who acts as chair and "a member who is judge, a lawyer or a member of the public."
Security of Tenure:
It is questionable whether a judicial officer who requires the consent of the Attorney General to perform judicial functions could reasonably be said to have the requisite degree of independence to chair a Hearing Panel of the Justices of the Peace Review Council. It would seem to be consistent with the fundamental principle of judicial independence that the chair of such Hearing Panels under the Justices of the Peace Act be full judges who do not require the consent of the Attorney General to perform judicial functions. Otherwise, it could reasonably be argued that the Attorney General or the Executive is encroaching on matters reserved to the judiciary or that the constitutional right to a fair and impartial hearing can not be had in the circumstances.
United Nations Enactments:
The independence of the judiciary is one of the fundamental principles recognized and advocated by the United Nations and the member states. Article 3 of Basic Principles of the Independence of the Judiciary stipulates that the judiciary shall have jurisdiction over all issues of a judicial nature. In addition, Article 7 provides an obligation on government to provide adequate resources to enable the judiciary to properly perform its functions.
Justices of the Peace Act, R.S.O. 1990, c. J.4
Temporary Members
s.8(10) The Chief Justice of the Ontario Court of Justice may appoint a judge or a justice of the peace who is not a member of the Review Council to be a temporary member of a complaints committee or a hearing panel in order to deal fully with a matter.
Courts of Justice Act, R.S.O.1990 c C.43:
Part-Time Judges
s.44(2) The Chief Justice, with the Attorney General's consent, may designate a former provincial court judge who has retired from office to serve as a provincial judge on a part-time basis, not to exceed 50 per cent of full-time service in a calendar year.
s.44(3) A person designated under subsection 2 is a provincial court judge and a member of the Ontario Court of Justice.
s.44(4) A judge who is serving on a part-time basis under subsection (1) or (2) shall not engage in any other remunerative occupation.
United Nations - Basic Principles on the
Independence of the Judiciary:
Independence of the Judiciary
Art. 3 The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
Art. 7 It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
Conditions of Service and Tenure:
Art. 11 The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.
NOTE: This piece is written for the sole purpose of drawing attention to issue of public importance, namely the question raised in the heading. It is based on the statutory enactments available to the writer at the time of writing. If any information contained in this post is inaccurate the writer is fully committed to correcting same.
To answer this question one would have to look to the pieces of legislation which touch on the very important question touching on judicial independence. The first piece of legislation is the Courts of Justice Act. This is the statute which governs the Ontario Court of Justice and its judges. This statute provides that "part-time judges" are provincial court judges. However, there is a condition. Part-Time Judges require the consent of the Attorney General to sit under section 44(2) of the legislation. The other applicable piece of legislation is s.8(10) of the Justices of the Peace Act. This provision vests the Chief Justice of the Ontario Court of Justice with jurisdiction to appoint "a judge or a justice of the peace who is not a member of the Review Council to be a temporary member of a Hearing Panel. A proper reading of s.11.1(1) makes it clear that a hearing panel can be composed of two judges - one who acts as chair and "a member who is judge, a lawyer or a member of the public."
Security of Tenure:
It is questionable whether a judicial officer who requires the consent of the Attorney General to perform judicial functions could reasonably be said to have the requisite degree of independence to chair a Hearing Panel of the Justices of the Peace Review Council. It would seem to be consistent with the fundamental principle of judicial independence that the chair of such Hearing Panels under the Justices of the Peace Act be full judges who do not require the consent of the Attorney General to perform judicial functions. Otherwise, it could reasonably be argued that the Attorney General or the Executive is encroaching on matters reserved to the judiciary or that the constitutional right to a fair and impartial hearing can not be had in the circumstances.
United Nations Enactments:
The independence of the judiciary is one of the fundamental principles recognized and advocated by the United Nations and the member states. Article 3 of Basic Principles of the Independence of the Judiciary stipulates that the judiciary shall have jurisdiction over all issues of a judicial nature. In addition, Article 7 provides an obligation on government to provide adequate resources to enable the judiciary to properly perform its functions.
Justices of the Peace Act, R.S.O. 1990, c. J.4
Temporary Members
s.8(10) The Chief Justice of the Ontario Court of Justice may appoint a judge or a justice of the peace who is not a member of the Review Council to be a temporary member of a complaints committee or a hearing panel in order to deal fully with a matter.
Courts of Justice Act, R.S.O.1990 c C.43:
Part-Time Judges
s.44(2) The Chief Justice, with the Attorney General's consent, may designate a former provincial court judge who has retired from office to serve as a provincial judge on a part-time basis, not to exceed 50 per cent of full-time service in a calendar year.
s.44(3) A person designated under subsection 2 is a provincial court judge and a member of the Ontario Court of Justice.
s.44(4) A judge who is serving on a part-time basis under subsection (1) or (2) shall not engage in any other remunerative occupation.
United Nations - Basic Principles on the
Independence of the Judiciary:
Independence of the Judiciary
Art. 3 The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
Art. 7 It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.
Conditions of Service and Tenure:
Art. 11 The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.
NOTE: This piece is written for the sole purpose of drawing attention to issue of public importance, namely the question raised in the heading. It is based on the statutory enactments available to the writer at the time of writing. If any information contained in this post is inaccurate the writer is fully committed to correcting same.
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