A two-tiered JP system in Ontario would be fair and just

Apr 27, 2016 By Matthew Friedberg
Ontario should adopt a two-tiered Justice of the Peace system — like other provinces already have — so that only those JPs with legal training have the authority to decide on bail, search warrants and other serious matters, says Toronto criminal lawyer Matthew Friedberg.

“It is an issue of significant concern — and has been for many years — that many justices of the peace don’t have formal legal training or background,” he tells AdvocateDaily.com. “They are making decisions that have a serious impact on peoples’ lives.”

Friedberg weighs in on the issue after the Toronto Star reported that of the 14 justices of the peace recently appointed by the provincial government, only five have law degrees.

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

The newspaper points out that while justices of the peace have the power to deny bail and to incarcerate people for certain offences, few of them have been trained as lawyers.

Ontario’s “lay bench” is different from some other provinces that require JPs to have formal legal education or experience, says the article. In Ontario, they simply require a university or college degree and 10 years of full-time work or volunteer experience, it says.

Some lawyers, including Friedberg, say that should change. They point out that while the role of justices of the peace has evolved to become more powerful and complex, the job qualifications have remained the same, says the newspaper.

Friedberg says it’s important to note that judges are required to have at least 10 years of experience practising as a lawyer before they can sit on the bench "so they can draw on their legal knowledge and experience in order to apply the law correctly." But justices of the peace aren’t required to have any legal experience or education and are tasked with making important decisions that are often life-changing for people, he says.

Friedberg says that all professions require education, degrees and certification in the 21st century. Likewise, JPs should have legal education and training because they are charged with making significant legal decisions.

“It’s surprising that the same logic doesn’t seem to apply to justices of the peace when they are making important decisions about peoples’ liberty, privacy including search warrants, as well as a host of other powers,” he says.

Friedberg says that while lawyers have long expressed concerns over this issue, he believes that most people aren’t bothered about it because it doesn’t affect them.

“The average person doesn’t go through a bail hearing or have a search warrant executed in their home so they aren’t impacted,” he says.

Alberta, Quebec and Nova Scotia have a two-tiered JP system where only those who are lawyers with legal experience are permitted to preside over trials. The other class of JPs, which doesn’t require legal training, are involved with administrative matters such as performing marriages and administering oaths, says the Star.

There was an attempt to make some legislative change to Ontario’s JP system in 2012 when Liberal MPP David Orazietti, then a backbencher and now minister of Government and Consumer Services, tabled a private member’s bill that would have effectively created a two-tiered system for JPs similar to what other provinces have in place. The bill didn't go beyond first reading.

But the Star reports the Attorney General’s office is reviewing the current roles and responsibilities of JPs and the qualifications for the job.

Friedberg supports the notion of a two-tiered system, noting a legal background isn’t typically required for dealing with parking tickets and other administrative tasks that need to be performed in the justice system.

“I think a two-tiered system is a great idea — I”m not saying there is no place for any justices of the peace without legal education to participate in the legal process,” he says. “There are many administrative tasks that don’t need to be performed by lawyers.

"But if a justice of the peace is deciding whether someone is going to get bail or whether an individual will have a search warrant executed at their home, a legal education, experience and training should be required,” he says. “These are important decisions.”