Why the Justices of the Peace Act and Procedures May Be Unconstitutional - Part I of 2

Security of Tenure:

   Ontario Court of Justice judges have security of tenure by virtue of the Courts of Justice Act and the following provision in the Ontario Judicial Council Procedures Document:

7.   Presenting Counsel shall prepare the Notice of Hearing for the approval of the review panel that referred the complaint for hearing.

   The legal effect of this provision in the Ontario Judicial Council Procedures Document
effectively ensures that the Notice of Hearing issued against the judge complies with
natural justice, fairness and the Court of Appeal for Ontario judgment in Hryciuk  v.
Ontario .  That binding legal authority in Ontario requires that judges can only be
removed by way of a complaint in writing which must be first investigated by a
reviewing body.

    Unlike the Procedures Document of the Ontario Judicial Council, the Procedures Document of the Justices of the Peace Review Council does not contain a mandatory review of the Notice of Hearing prepared by Presenting Counsel.  This is what the similar provision in the Procedures Document of the Justices of the Peace Review Council provides:

7.   Presenting counsel shall prepare the Notice of Hearing.

   The legal effect of the absence of the review and approval of the Notice of Hearing against a sitting justice of the peace in Ontario is that a justice of the peace can be removed from office contrary to natural justice, fairness and the binding legal authority of Hryciuk  v. Ontario 1996 Canlii 4013 (ONCA).

Unfettered Discretion

   Presenting Counsel is retained by the Review Council to present the case against the subject justice of the peace.  Presenting Counsel is authorized by the Procedures Document to prepare the Notice of Hearing without any review or input from the complaints committee. Under this statutory scheme is is entirely possible for the Notice of Hearing prepared by Presenting Counsel to raise new issues which were not part of the complaint and which were not part of the complaint committee's order for hearing contrary to Hryciuk(supra).  What this shows is that there is a serious conflict between the Justices of the Peace Act and the Procedures Document which seriously undermines the security of tenure of justices of the peace in Ontario.

Impact of Unfettered Discretion

   "Unfettered discretion can not exist where rule of law reigns...all power is capable of abuse, and that the power to prevent abuse is the acid test of judicial control."

Wade, Administrative Law


   ...However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manouevre contemplated by the legislature, in accordance with the principles of the rule of law, in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms.

Justice L'Hereux-Dube in Baker