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.
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