Pilot subs judges for justices of peace

More experienced adjudicators hoped to speed up bail hearings

Aprovincial court pilot project that has judges presiding over bail hearings at two of Ontario’s busiest courthouses has lawyers once again questioning the role of justices of the peace.

In an effort to speed the court process, the Ontario Court of Justice announced last week that judges would take over bail hearings at College Park in Toronto and the Ottawa courthouse.

The move comes as governments and courts continue to grapple with the effects of a 2016 Supreme Court of Canada decision that set strict timelines to bring criminal cases to trial.

The pilot project, expected to last 18 to 24 months, “is exploring whether the introduction of judges’ criminal trial experience at the earliest stage of the criminal court process could reduce time to final disposition,” court spokesperson Kate Andrew said.

“All judges at the Ottawa and College Park courthouses will participate in the bail project and will be scheduled to preside in bail court as well as in trials, judicial pretrials and all other regular judicial responsibilities.”

Unlike someone looking to become a judge, a person does not need a legal background to qualify for the role of justice of the peace (JP). Aside from presid- ing in bail court, JPs, who earn significantly less than judges, sign off on search warrants and preside over brief court appearances and matters involving provincial offences.

JPs will continue to handle bail hearings in courthouses other than College Park and Ottawa, Andrew said.

The court’s pilot project has prompted lawyers to question why JPs preside over bail in the first place, pointing out that it’s a critical step in the court process in which a person’s liberty is at stake when they have not yet been convicted of a crime.

Many criminal defence lawyers have long complained about the fact that such an important task is being placed in the hands of individuals who do not necessarily have a legal background.

Some have blamed JPs as one reason why jails are overcrowded with inmates who are awaiting trial. Others see it differently. “Putting experienced judges in bail court isn’t a solution to ensuring speedier justice,” said criminal defence lawyer Daniel Brown, a Toronto director of the Criminal Lawyers’ Association. “While it is preferable to have our bail courts staffed with jurists who possess criminal law backgrounds, the answer is to hire more justices of the peace who possess that skill set.”

While the court has said judges will continue with their regular duties on top of presiding in bail court, lawyers have expressed concern that the pilot project will still lead to delays at the trial stage if judges have to be moved around to accommodate bail hearings.

Ottawa criminal defence lawyer Michael Spratt said that there were times when it could take up to a week to get a bail hearing at the courthouse in that city, “which is unacceptable,” but it could take months, if not more than a year, to get a trial date.

“The role of justices of the peace should be examined,” he said. “I think there should be an acknowledgement that justices of the peace play an important role in the justice system . . . but I think there should be no scared cows about what that role actually should be.

“If you take a step back and think about it, it is rather shocking that you would rather have people without legal degrees, without the type of experience that judges by definition need to have, making decisions about police searching your house and about whether someone remains in custody or is released pending trial.”

Spratt said a complete reorientation of the justice system is required in order to reduce court delays, including examining the use of the criminal law in dealing with people who are in poverty, or have mental issues and addictions.

James Morton, former counsel to the Association of Justices of the Peace of Ontario, told the Star that part of the reason for having judges conduct bail hearings could be a current shortfall on in the number of JPs. But he also acknowledged that there have long been calls from some groups for judges to preside over bail, and that could have played a role in the court’s decision on the pilot project.

“Justices of the peace know the law perfectly well and can make the decision just as well, to my thinking, as any judge can,” he said. “Regardless of anything else, the length of time a bail hearing takes is really not con- tingent on the judge or the justice of the peace hearing it; it’s contingent on the Crown putting in whatever material they have, the defence calling sureties, whether they’re arguing over the form of release.”

Court delays are expected to be at the top of the agenda of the two-day federal, provincial and territorial justice ministers’ meeting, which begins Thursday in Vancouver.

The issue was put front and centre last year when the Supreme Court ruled in a case known as R. v. Jordan that cases taking longer than 18 months in provincial court, or 30 months in Superior Court, must be tossed unless the Crown can prove there were exceptional circumstances for the delay.

Bail has been among the areas targeted by Ontario Attorney General Yasir Naqvi as in need of an overhaul to speed up the court process. There have been calls for federal Justice Minister Jody Wilson-Raybould to push for Criminal Code amendments that would scrap preliminary inquiries in most cases.

Wilson-Raybould’s parliamentary secretary, Marco Mendicino, told the annual Opening of the Courts ceremony in Toronto Tuesday that change is expected to be announced at the meeting in Vancouver.

“There, we hope to adopt a suite of legislative and policy proposals whose purpose will not only be to reduce court delays, but even more so, to break free from the culture of complacency which has beset our justice system, as laid bare in Jordan.

“It is time to act,” he said in his remarks.

Naqvi told the ceremony, which included the chief justices from all three levels of court in Ontario, as well as a number of other judges, lawyers and dignitaries, that the Ministry of the Attorney General will soon be releasing a new policy for Crown attorneys on bail.

“Too many of the people in our province’s correctional facilities are on remand,” he said.

“Too many are vulnerable, low-risk people, or those with mental-health and addictions issues.

“And far too many, a disproportionate number, are racialized or Indigenous.”