Editorial: Should all JPs be lawyers?

Should all justices of the peace have to be lawyers?
That was the question Ontario Superior Court Justice Gregory Ellies dealt with in R. v. Zelinski this month.

As Highway Traffic Act proceedings against him moved along, Michael Zelinski, represented by Donald Orazietti, sought an order prohibiting any non-lawyer justice of the peace from presiding at his trial dealing with the provincial offence of stunt driving.

As an alternative, he sought a declaration under s. 24(1) of the Charter of Rights and Freedoms barring any non-lawyer justice of the peace from presiding in the provincial offences court.

Zelinski argued that Ontario’s system of allowing non-lawyers to become justices of the peace, contrary to Alberta’s, violates his Charter rights under ss. 7 and 11(d). Ellies, however, rejected those arguments. “I am not prepared to accept the proposition that a trial before a non-lawyer JP is inherently unfair simply because a trial before a lawyer JP might be better,” he wrote.

As Ellies noted, at least one study has pointed to the wisdom of following Alberta’s approach, which that province adopted after a 1998 decision of the Alberta Judicial Council. Doing so, the report said, would help address the low status of the role of justices of the peace in Ontario’s court system by improving quality.

According to Ellies, however, that doesn’t mean trials before non-lawyer justices of the peace are unfair under the Charter. As a result, he rejected Zelinski’s application and ordered the matter to go before the provincial offences court for trial.

Still, it’s worth considering whether Ontario should follow Alberta’s lead given the comments about the quality of the current system.

In fact, as the 2007 report of the Ontario Justices of the Peace Remuneration Commission noted, justices of the peace perform important roles, particularly given the advent of telephone search warrants that require them to consider urgent applications at any time related to issues affecting people’s fundamental rights.

In that light, requiring justices of the peace to have the sort of legal training lawyers go through makes sense.
But the issue then becomes one of cost.

Many justices of the peace make less than mid-range Crown prosecutors who also work for the province. So if the government were to make such a change successfully, it’s likely it would have to increase salaries to attract more lawyers to the job.

But is it worth it? In a perfect world, it certainly would be. But in an era of constraint, now isn’t the time to go down that path, particularly given Ellies’ comments that a trial before a non-lawyer justice of the peace isn’t inherently unfair.

Having lawyers do the job may be better, but there are other issues to consider as well.

- Glenn Kauth

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