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.”

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