Wednesday, 15 June 2016

Bad Justices of the Peace

Only five of 14 new "justices of the peace" recently appointed in the province of Ontario in Canada have a law degree: Critics argue that JPs, given power to deny bail and jail individuals pending trial, should have more legal training. I agree. They also preside over non-criminal offences such as traffic violations.

Solange Guberman, the Ottawa JP resigned before a discipline panel could rule on the allegations against her, including her “pervasive” lack of understanding of basic law, falling asleep in court, screaming at staff and relying on police officers and prosecutors for advice. She also allegedly spoke French when she was aware not all parties could understand her.

One JP needed a great deal of time to decide on a ruling she was to make. Adele Romagnoli, a JP in Newmarket was upbraided earlier this year by Superior Court Justice Mark Edwards for wanting to take nearly 11 months to decide whether to accept guilty pleas and impose fines on several speeding offences. Edwards also noted that rulings by Romagnoli have been overturned in at least three other cases where she did not follow joint submissions on sentencing.

Alfred “Budd” Johnston in a memorable decision, threw out more than 60 cases — many of them traffic offences in 2012 because the prosecutor was 71 seconds late arriving in court. The move was described as “draconian” and “intemperate” by Ontario Court Justice Ramez Khawly, who accepted the City of Toronto’s appeal of the mass dismissal and  later brought them back  into another court for trial.

It is frustrating when on occasions, ordinary citizens and their legal representatives have to deal with twits like these three just mentioned.

Here is how these three twits got their appointments as justices of the peace.

How they applied:

Any individual can submit an application form to the Justices of the Peace Appointments Advisory Committee but only when a JP vacancy is advertised.

The process:

The committee is made up of a judge, a justice of the peace and one who is familiar with aboriginal issues and four other members appointed by the Attorney General.

Aside from the necessary qualifications, the committee also looks for diversity among applicants, and to see if they possess skills and abilities including “a high level of achievement” in employment and/or community service and “demonstrated good judgment in the face of real or perceived conflict of interest.”

The committee then classifies candidates as “Not Qualified,” “Qualified” or “Highly Qualified.” They may or may not interview an individual before assigning a classification.

The classifications are then passed on to the Attorney General, who recommends candidates to cabinet for appointment

There doesn’t appear to be a limitation on age but judges generally have to retire at age 75.

With so few lawyers serving in the position, the JP system in Ontario is still considered a “lay bench,” yet the justices are able to deny bail and detain individuals pending trial as well as to incarcerate them for certain offences. In fact, Justices have the power to send defendants to jail for a very long time and make some of them pay millions of dollars in fines.

Ontario, unlike some provinces, does not require JPs to have a formal legal education or experience in law. They simply need a university or college degree and 10 years of full-time work or volunteer experience. I suppose that infers that they are intelligent and possess common sense,—important attributes required of persons that hold such responsibilities in our society.

That’s something a growing number of criminal defence lawyers who say needs to change. Even as the role of justice of the peace has evolved to become more powerful and complex, they point out that unfortunately the job requirements have remained the same.

Lorenzo Berardinetti, parliamentary assistant to Attorney General Madeleine Meilleur, is reviewing the current roles and responsibilities of JPs as well as the qualifications for the job.  It is certainly about time.

Justices of the Peace deal with complicated legal issues and they’re also dealing with human liberty.

In order to ensure fairness in a trial, JPs need to know the ground rules, which are constantly changing. Most defence lawyers are in a better position to know what the ground rules are and to stay up-to-date with them because they face various aspects of those ground rules where justice of the peace aren’t necessarily attuned to them.

JPs, who wear black robes and green sashes and earn $127,000 a year, are often the first point of contact for individuals entering the criminal justice system.

They receive training and mentoring before assuming their duties, which includes presiding over the vast majority of bail hearings and provincial offences matters (such as traffic violations) and authorizing search warrants. When I was practicing law, I on occasion would see a trainee JP sit next to a regular JP while trials were proceeded with.

There has has been a lot of concerns about pre-trial detentions in Ontario but from what I have learned, much of that is from JPs with no or little prior knowledge of the judicial system.

Some JPs tend to do whatever the Crown prosecutor (who are sometimes paralegals) suggests, which is detention or sort of this mindless imposition of unduly restrictive and unjustified bail conditions.”

Justices of the peace also have the power to impose discretionary publication bans on certain information, such as on the identity of murder or attempted-murder victims. JPs can also order publication bans on evidence given during bail hearings, if they are mandatory under the law if requested.

In two recent high-profile stabbings in Toronto, the same justice of the peace immediately imposed discretionary publication bans on the identities of the victims at the request of the Crown, without hearing evidence on why the bans were necessary, as is required in rules set out by the Supreme Court of Canada. As a result, media had to challenge the bans after the fact. Both bans were eventually lifted. Publication bans that are discretionary should never be automatically rubber stamped.

Some provinces in Canada such as Alberta, Quebec and Nova Scotia, have a two-tiered JP system, entrusting only lawyers with legal experience to preside over trials. The other class of JPs, which does not require legal training, deals with more administrative matters such as performing marriages and administering oaths.

There has been some minor legislative push in the past to modify Ontario’s JP system. Liberal MPP David Orazietti, then a backbencher kin the Ontario Legislature and now minister of Government and Consumer Services, tabled a private member’s bill in 2012 that would have created two classes of JPs similar to other provinces.

The class that could preside over bail hearings would be known as “presiding justices of the peace” and would require five years’ experience as a lawyer before appointment, compared with the minimum 10 years of experience needed to become a judge. Unfortunately, the bill did not go beyond first reading in the legislature.

Had it gone to the third reading, it would have created an insoluble  problem What would we do with all those JPs who currently sitting JPs who have no legal training?

James Morton, a lawyer who previously served as counsel to the Association of Justices of the Peace of Ontario said, “Having a predominantly non-lawyer bench of justices of the peace can be beneficial, as they bring a common sense practical approach to cases. I’m actually very comfortable with a non-lawyer looking at someone in a bail hearing, providing they’re trained, and saying: ‘Do I think this person poses a risk? Should they be on release?"

I disagree with him. If a non-lawyer JP doesn’t have training in criminal law (which both lawyers and criminologists such as myself have received) along with common sense, then the JP would not be qualified to determine if a defendant is at risk to society or inclined to breach his bail conditions.

While I accept that there is a need for bail reform and the need to deal with the problems relating to excessive incarceration, the problem isn’t so much the fault of justices of the peace but the law itself. But a trained JP in criminal law may be able to deal with the defendant in a more reasonable manner.

There are bad JPs just as there are bad lawyers so being a lawyer in order to be a JP is no guarantee that the all JPs will be good JPs.

Alas, we have bad JPs sitting on the bench. Years ago, I was representing two different clients in one particular day. Both trials were scheduled to begin at ten in the morning. One was in one community and the other was in another community. The first one I went to was in traffic court. The second one was in small claims court. None of them were particularly scheduled for ten o’clock since there were many cases being heard in each court that day. Since the traffic case could be dealt with quickly, I ask the JP (after telling him of my dilemma) if my client’s case could be heard as soon as possible.  He told me to sit down without saying a word. My client’s case was then heard last. By the time I arrived at the other court, it had already been adjourned for the day. The JP was inconsiderate. Normally, a JP would make the concession for me. That JP lacked common sense and decency. He just didn’t give a damn.

Toronto JP Robert E. Whittaker had been suspended from his duties pending a disciplinary hearing by the Justice of Peace Review Council (JPRC) over six complaints that include allegations he abused his power and was “impatient, sarcastic, impolite and arrogant” to those who came before him at the provincial offences court he presided over.

On October 30th in 2013, Whittaker’s comments appeared to reflect pre-conceived notions about Somali persons and bias against the accused, who was Somali and others with that background. On January 22nd of 2014, he was accused of making comments that reflected a lack of sensitivity and objectivity towards the issues facing the accused, a person suffering from mental illness.  The JPRC said that Whittaker abused his power to punish people when he wasn’t happy with them — even if it was “inconsistent with the framework of the law.”

Earlier on September 11, 2013, the JP added a $50 fee to each defendant for an interpreter even though he had no legal authority to do so. According to the notice of hearing, he added the illegal surcharge because he was annoyed the two had requested an interpreter and then failed to show up.

On another occasion, the JP was miffed when an expectant father was late for court because he’d been at the doctor with his pregnant girlfriend. The prosecutor wanted to withdraw the charge anyway, but Whittaker arbitrarily set a new date that made the man return from out of town just to have the case dismissed. The JP’s conduct and comments gave rise to a perception that he acted in a manner that appeared to be arbitrary and punitive and showed a willful disregard for basic legal principles. 

There was a list of Whittaker’s fellow JPs who had been summoned before the JPRC and reprimanded by their professional body for judicial misconduct. For example, Oshawa JP Errol Massiah was found guilty of sexual harassment for the second time in three years.

JP Tom Foulds was for suspended for seven days without pay for using his position to lean on two Toronto Public Health inspectors who had shut down the JP’s friend’s restaurant.

Admittedly, there have been regular judges who have been rude in court. Judge Derek Hogg comes to mind. He was the senior judge in the district of Etobicoke in Toronto.

He hated paralegals especially if they came to his criminal court representing clients. He would order the paralegal out of his court and tell the paralegal’s  client to hire a lawyer or go to Legal Aid. He ignored the ruling of the Ontario Court of Appeal that paralegals could represent clients if their clients were charged with minor criminal charges including driving while impaired. This judge even ignored the fact that the Criminal Code of Canada permits anyone to represent anyone else who is only facing a minor charge.

Worse yet, he was also stupid. On one occasion when a paralegal was representing a client on a minor charge in this judge’s court, he ordered the paralegal out of the courtroom and asked the prosecutor to see if there was a law student in the building who could take over the paralegal’s client’s case. The paralegal had been representing clients in criminal court for years and even studied criminal law for several years at the University of Toronto.

In another time, a paralegal was representing a client in this judge’s court and his client couldn’t read English since she was French. However, she could understand English words when spoken to her. When she was standing before the judge, she asked the paralegal if she had read the report given to her by the probation office. The paralegal said that she had not read it.  The judge then asked for an explanation. The paralegal said that he had read the report and explained to his client what the report had said about her. The judge then turned to prosecutor and said in a snarly voice, “Now you know why I don’t like paralegals in my courtroom. The paralegal then said in a loud voice, “She is French and cannot read English. That is why I explained to her what the report said.”  Then the Judge asked the prosecutor if he was satisfied that the paralegal could take on such a case. The prosecutor said he was satisfied that the paralegal was qualified.  After the judge heard the paralegal’s legal argument about his client being  innocent of the charge she was facing and the prosecutor agreeing with him, the judge dismissed the case against the paralegal’s client.   The job of being a judge or a justice of the peace is a difficult one. It requires knowledge of the law and the ability to form a valid opinion as to who is telling the truth and who is not. They deserve the salaries they get.

Unfortunately there are some real bad apples in the judiciary and it is the responsibility to remove undesirable judges and justices of the peace when they are acting in a manner that is unworthy of a such an important position in our society. 

I would be less than honest f I didn't mention that I have represented my clients in front of some very fine JPs. But sometimes, the JPs I saw in court were real assholes. 

No comments: