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JP retirement provisions violate Charter

|Written By Julius Melnitzer

For the most part, Ontario’s justices of the peace labour below the radar of the justice system. Perhaps that’s why the provincial government thought it could arbitrarily impose a mandatory retirement age of 70 on them.

Mary Cornish says the issue in a recent Charter challenge by JPs was, ‘What should the retirement age be, and why should it be different from that of judges.’

“Judges who sit in some of the same courts as the JPs do have a mandatory retirement age of 75,” notes Mary Cornish of Toronto’s Cavalluzzo Hayes Shilton McIntyre & Cornish LLP, who with colleague Jo-Anne Pickel represented the JPs in Association of Justices of the Peace of Ontario v. Ontario (Attorney General), the Charter challenge mounted against the legislation mandating their retirement.

“The issue wasn’t whether the government could fix a retirement age, because all parties conceded that this was necessary to reinforce the security of tenure that was fundamental to JPs’ judicial independence,” Cornish explains. “Rather, the issue was what should the retirement age be, and why should it be different from that of judges.”

Joining the association in the constitutional challenge were three JPs who were forced to retire at age 70 although each wished to continue working and expressly indicated this at retirement.

In a 58-page judgment released on June 8, Justice George Strathy, of the Ontario Superior Court of Justice, concluded that the provisions mandating retirement violated the JPs’ equality rights under s. 15 of the Charter.

The remedy he imposed was to read into the legislation the provision relating to provincial court judges that permitted retirement at age 65 or continuation in office until the age of 75, subject to annual review by the chief justice of the Ontario Court of Justice.

“We’re in the course of working out the implementation of the judgment with the government,” Cornish says.

JPs, Strathy noted, have jurisdiction over provincial offences, bail hearings, and search warrants, and deal with a wide range of family law cases, most criminal charges, and a myriad of provincial statutes.

“In an average year, justices of the peace will deal with over 1.7 million charges under the Provincial Offences Act, preside over tens of thousands of bail hearings and review thousands of search warrant applications,” he wrote.

In 1982, criminal law professor Alan Mewett conducted a provincially ordered review of the JP system. Among his recommendations was a mandatory retirement age for JPs.

“I have no particular view of when that should be except I think 60 is too young and 80 too old,” Mewett wrote.

In 1989, the province enacted the Justices of the Peace Act, which established 70 as the mandatory retirement age.

“It appears that the retirement age of 70 was chosen as a result of the Mewett report,” Strathy observed. “There is no evidence in the record before me of any reasons for the selection of that age, as opposed to any other age, in any of the debates in the legislature at the time, or, indeed, of any analysis of this issue on the part of the government, either then, or since.”

Still, Robert Charney and Sarah Wright, counsel for the province, argued that Mewett’s report provided a basis for the exercise of a limited range of government discretion in choosing the retirement age.

“The province tried very hard to fit this case into the jurisprudence, including the autism cases, which suggest that a government which proceeds with the implementation of a constitutionally valid social policy has discretion in its implementation,” Cornish says.

The province also argued that the core of the applicants’ case was that they were not treated in the same way as provincial court judges, who can work until they are 75. This, the province maintained, amounted to a distinction based on occupational status, which was not an appropriate ground of discrimination under s. 15.

But Strathy didn’t see it that way.

“The impugned provisions of the Justices of the Peace Act clearly draw a formal distinction between the applicants and their colleagues based on the personal characteristics of age, an enumerated ground [under s. 15],” Strathy wrote. “The appropriate comparator in this case is justice of the peace under the age of 70.

“While the applicants do mention that they are offended by being retired at age 70 while provincial judges working in the same courthouses are permitted to work to 75, this evidence must be put in its overall context, in which the applicants express the many negative effects of their mandatory retirement.

It does not, in and of itself, indicate that the claim is based on occupational status, particularly where the legislation makes an explicit distinction based on age.”

Here, the differential treatment of the applicants discriminated against them because it reflected preconceptions about age that were not correlated to their actual circumstances, and because it had the effect of promoting the view that they were less capable or worthy of recognition or value.

“I find that [the mandated retirement age] has demeaned the applicants on a subjective level and that, viewed from the perspective of a reasonable person in the position of the applicants, it adversely affects their human dignity in one of its most basic aspects - participation in life-affirming work.

Whether mandatory retirement of the judiciary may be a socially necessary limitation on their rights does not lessen its discriminatory sting.”

Nonetheless, the objective of the impugned legislation - preserving JPs’ independence through security of tenure - went to the issue of whether the legislation was a “reasonable limit” on the applicants’ rights under s. 1 of the Charter.

Both parties agreed the legislation’s objective was sufficiently “pressing and substantial” to limit Charter rights. There was also a rational connection between the objective and mandatory retirement at a defined age.

Where the government’s case was wanting, however, was in failing to establish that the means chosen to implement its objective impaired the applicants’ rights as little as possible or no more than reasonably necessary.

“There is no evidence that the government has, at any time and even in the context of [subsequent amendments], turned its mind to the selection of a mandatory retirement age of justice of the peace that would balance the objective of judicial independence against the right to freedom of discrimination on the basis of age in such a way as to minimally impair the right,” Strathy concluded.

It followed that the province had failed to demonstrate that the harmful effects of the legislation were proportional to the legitimate legislative goal.

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