Of the 38 justices of the peace the provincial government appointed this summer, only 12 have law degrees.
This has led to a renewed call by lawyers for a requirement that justices of the peace who preside over bail hearings have a law degree.
Justices of the peace in Ontario oversee trials for offences under the Provincial Offences Act, but they also preside over bail hearings — something lawyers say should require legal expertise.
“The issues in a bail hearing are incredibly complex, and the jeopardy that people are facing is extremely high,” says Amanda Ross, a criminal defence lawyer with Cooper Sandler Shime & Bergman LLP.
“You’re looking at whether or not you’ll be released [and] you’re looking at whether or not your liberty will be put on hold for the duration of your criminal case and that has a massive impact on both your day-to-day life and ultimately how your case turns out.”
She says there can be complex evidentiary and legal issues at bail hearings, such as the Gladue principles that need to be applied to a proceeding involving an aboriginal accused person.
Having an adjudicator that does not have an intricate knowledge of the law in such circumstances can be problematic, she adds.
Candidates to become justices of the peace are required to have a university degree or a college diploma and 10 years of paid or volunteer work.
The Justices of the Peace Appointments Advisory Committee reviews applications and issues determinations on whether candidates are qualified to the attorney general, who will then recommend appointments to the Ontario Court of Justice.
Ross says she would have preferred if the proportion of lawyers appointed this summer to be justices of the peace was higher or even slanted the other way so that the majority of appointments had a legal background.
She says lawyers are more likely to recognize concerns accused people might have that go beyond running an efficient court. There are practical issues that can be forgotten by someone who has never appeared in a bail court in the position of counsel, she says.
“There are real world concerns that can get lost in the bail process that as a practitioner you’re slightly more sensitive to because you’ve seen it in the trenches,” Ross says.
She says the rate of detention is far too high and stems from the law being misapplied in such proceedings.
Brian Greenspan, a criminal defence lawyer with Greenspan Humphrey Weinstein, says that while he does not have a problem with the JP appointments, he thinks that those conducting bail hearings should have a law degree.
He says that the decision that is made by an adjudicator in a bail hearing is the most critical decision in the justice system.
“I think that people who make that critical decision on release ought to be legally trained people,” he says.
Lawyer James Morton, who used to serve as counsel for the Association of Justices of the Peace of Ontario, says it does not hurt for JPs to have law degrees but that it is by no means necessary, even for bail proceedings.
He says having a law degree is not necessary as the JP bench is designed as a lay bench.
“The legal issues in bail are not that complicated. It’s the factual issues [and] making the decision of whether or not someone is going to be likely to offend while they’re out on bail [and] how does the community see the release of this individual,” Morton says.
“And those are things which frankly having a law degree doesn’t make much difference one way or another.”
Morton says general life experience is probably more helpful for JPs and that sometimes lawyers’ experiences are rather narrow.
He adds that there are some complex legal issues that come up and a law degree is not a hindrance, but it is not a necessity.
Ross, however, says common sense doesn’t always carry the day in the criminal justice system.
“You have people coming before you who are accused of what are sometimes very heinous offences,” she says.
“And the gut reaction [or] the common sense reaction could be of course it’s too dangerous to let these people back out into the community, but that’s not the legal standard.”
In 2012, then-Liberal MPP David Orazietti introduced a private member’s bill that would have created two tiers or classes for justices of the peace.
It would have required law degrees for the tier that would preside over bail hearings but not for those who were engaged in many of the other JP functions.
While the bill — called the Justices of the Peace Modernization Act — had support of the legal community, it was never passed.
Orazietti, who became a cabinet minister in Ontario Premier Kathleen Wynne’s government before he recently left politics, declined to comment on why he thought the bill did not pass.
He says he would have reintroduced the bill if he had not entered cabinet, but ministers cannot introduce private member’s bills.
“I believe there is broad support in the sector for it and I think Ontarians expect we do all that we can to raise the integrity of the court system,” he says. “The question is, ‘Does it fit into the premier’s agenda?’ That’s really [the] question. The legislation that gets on the order paper and the priority of that legislation is a decision that’s made by the premier’s office.”
He adds that while government legislation has priority over other bills, private member’s bills can pass if there is enough of a sense of public urgency. Orazietti says he believes such legislation is still needed to raise the standards of candidates being appointed to make what can be important life-altering decisions.
Ontario Attorney General Yasir Naqvi declined to be interviewed on the topic and his office did not provide comment before deadline.