One modest proposal for speedier justice

TheStar.com – opinion/commentary – Greater use of justices of the peace would ease judges’ workload.
Jul 08 2013.   By: James Morton

What do you tell victims of crime when they find out that because of delays in the justice system they will not get their day in court? What do you tell a child temporarily removed from her home when she asks when she can go back and the answer is: “When we can find a judge to decide”? These questions are just a few of many in a debate about access to justice in Ontario and Canada.

Access to justice is a real issue affecting all Canadians, from victims of crime to accused persons, children and families, the elderly and the innocent. But while we strive to improve access to justice, the courts are limited by significant constraints, such as personnel, funding and, specifically, a lack of judicial officers to hear cases.

These limits create institutional delay. For example, according to the Child and Family Services Act and the Family Law Rules, a hearing regarding child protection must take place within four months of the start of the case, but in fact more than half of all child protection proceedings took more than four months in 2011-2012, the most recent year for which we have statistics.

The Ministry of the Attorney-General has attempted to speed up the process through various initiatives, such as mediation programs and the appointment of non-judge resolution officers in the family law system, as well as targeted timelines for cases in the criminal law system. However, given that the Ontario Court of Justice serves 25,000 families in crisis and hears approximately 590,000 charges in its almost 200 locations annually, it is no wonder institutional delay persists.

There are just 330 full- and part-time Ontario Court of Justice judges. Think about that for a moment; each judge presides over approximately 1,788 cases per year or about seven cases per 6.5-hour working day (factoring in breaks). These numbers do not include vacations and sick days. This back-breaking workload could be dealt with by appointing more judges, but there is another solution that does not require hiring more judges: justices of the peace have the jurisdiction to take over many of the cases now handled by judges.

Currently in Ontario, the 362 full- and part-time justices of the peace preside over bail hearings, warrant applications, assignment court where dates for trial are set, as well as provincial offence matters.

But the powers accorded to justices of the peace are not limited to these tasks; indeed, there are a number of different statutes giving them jurisdiction to deal directly with family matters outside the criminal context as well as summary conviction matters in criminal court.

For example, the Children’s Law Reform Act allows for justices of the peace to make restraining orders and custody and access orders regarding parents and their children. This is similarly true with parts of the Child and Family Services Act.

The Criminal Code already allows justices of the peace to deal with summary conviction matters in criminal court. This authority was recently confirmed by the Ontario Court of Appeal, which said “justices of the peace have the jurisdiction to hear summary conviction matters . . . If their jurisdiction (were) used more frequently . . . it (would) increase the amount of cases that (could) be heard every day, thereby reducing delay and adding to the goals of the Justice on Target program.”

Unfortunately, despite the jurisdiction granted to them, justices of the peace have not been allowed to exercise their authority widely. Expanding their role would increase the number of judicial officers available to preside over matters in the Ontario Court of Justice, both family and criminal. This expansion could be done without the need for legislative revision, as justices of the peace already have the necessary jurisdiction. The ability to exercise that jurisdiction would be a big step away from court delays and a significant step toward improved access to justice in the family and criminal systems.

Justices of the peace already deal with complex legal issues related to the liberty of the subject. While some additional training would be needed to bring them into the family law context, they already are a highly trained cadre of professionals with vast experience dealing with highly emotional and complex disputes. Justices of the peace are already familiar with criminal matters and would need very little extra training to be ready to deal with summary conviction cases. Underutilizing them is a waste of resources.

Allowing justices of the peace to exercise the jurisdiction they already have would be a creative way to do more with what already exists. It’s time to be creative and properly utilize the resources we have.

James Morton is a lawyer and past president of the Ontario Bar Association. He is counsel to the Association of Justices of the Peace of Ontario.

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