Globe and Mail
to be a justice of the peace? Just apply
Justice of the Peace Maureen Ryan-Brode was not at all happy when a pair of lawyers failed to show up for a routine proceeding to remand a case. She ordered the arrest of their clients.
When the flabbergasted lawyers appeared a couple of hours later to apologize, Ms. Ryan-Brode would not reconsider. "I am done," she declared. "I do not want to hear any more submissions. I am not going to rescind it."
Mr. Justice John Brockenshire of Ontario Superior Court was clearly shocked when he heard an appeal of the arrest order, which had been issued this year in Windsor, Ont. In fact, he described Ms. Ryan-Brode's reasoning as "strange."
"It appears to me to be perverse and a travesty of justice that a judicial officer -- one of whose main duties is to deal with the release of persons who have been arrested -- is found here ordering the arrest of people without good reason, and then refusing to cancel the warrant for no good reason whatsoever."
Perhaps it was a bad day for Ms. Ryan-Brode, with her decision being out of character. But the incident is another arrow in the quiver of critics who say the day has passed when justices of the peace -- judicial officers with increasingly weighty responsibilities -- can be light on qualifications.
"Their power and responsibilities and judicial duties are immense," said Bob Richardson, a director of the Criminal Lawyers Association. "Who are they? We hear stories about chauffeurs of former cabinet ministers being appointed.
"What is their training? How can you go from being a milkman to deciding somebody's liberty or whether a company breached environmental standards? You cannot suddenly learn in an afternoon to balance people's rights."
The CLA estimates that only about 5 per cent of Ontario's 304 JPs have law degrees. Yet, a full-time JP discharges such serious responsibilities as:
Issuing search warrants, arrest warrants and peace bonds;
Hearing pleas at a first appearance;
Imposing publication bans;
Presiding over trials involving workplace safety, immigration, environmental protection and highway traffic act offences;
Granting and denying bail.
Mr. Richardson said bail requests are of particular concern since a denial can mean many months of jail for someone not been found guilty of anything.
"I wouldn't even want to hazard a guess at how many people plead guilty because they don't want to stay in jail," Mr. Richardson said.
"Bail hearings may be the most important point in the criminal process. Yet, you have non-legal people who are not judicially trained running bail courts. A lot of what they do is not egregious conduct. It is just getting it wrong."
But in provinces such as Ontario, who you know ranks as more important than what you know in winning appointments as justices of the peace.
Vacancies are not advertised. When a vacancy for the $78,694 job arises, the Ministry of the Attorney-General sends the name of its favourite candidate to its justice of the peace review committee. The committee needs only to state whether the candidate is "recommended" or "not recommended."
Qualifications include having integrity, a knowledge and understanding of the judicial system and sound administrative abilities. "Good oral and written communication skills, as well as a background in the criminal-justice system, would certainly be an asset," a ministry brochure says.
If the candidate is approved by the committee, the minister can make the appointment. The new JP then receives three weeks of orientation training and up to six months of further training, if needed. There is a mentoring program and heavy supervision for a period after the appointment.
Mr. Richardson said he doesn't blame anyone who seeks a JP position. "It pays well and there is status," he said. "A lot of them are quite good, luckily enough -- because it is just luck if they are."
Judges increasingly recognize a need for JPs to enjoy judicial independence. The theory is that if they have to worry about their job security, JPs may not feel safe making tough rulings.
But CLA president Ralph Steinberg says there is great danger in granting greater autonomy to the wrong people -- even if it is for the right reasons. In a recent editorial appearing in a CLA newsletter, he urges association lawyers to report incidents of JPs misbehaving.
Too many JPs show signs of being more interested in "emphasizing the perquisites that attend judicial office" rather than in acting judicially, he wrote, adding that this tendency was never more evident than when Ontario JPs recently refused to go to jails to conduct bail hearings. "The courts said that they were independent, so they just said: 'We'll do all our work from courthouses.' "
JPs date to ancient England, where the monarch looked at them as near-official agents with lay perspectives who could act as sources of information regarding the thoughts of citizens in outlying areas. They remain lay people: teachers, engineers, former police officers, bankers and milkmen.
"Appointing non-lawyers to the office of the JP allows for broad public participation and representation in the administration of the criminal-justice system," an Ontario government news release says.
One way or another, the issue is coming to a head. The Supreme Court of Canada is set to hear a case next year involving an attempt by the Alberta government to mandate that every JP have a law degree.
Three former JPs dismissed because of the change challenged the new regulation's legality. In a recent ruling, the Alberta Court of Appeal said the legislation is a serious infringement on the judicial independence of JPs.
In the end, both sides of the debate have the same starting point -- the complexity of their work. Defenders of JPs say the greater responsibilities cry out for their having greater independence.
But detractors say the heightened responsibilities of JPs show why their qualifications must improve before their independent status puts them out of reach.