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JPs can work until age 75, says Ontario judge

|Written By Robert Todd

An Ontario Superior Court judge has ruled that a law forcing justices of the peace in the province to retire at age 70 is a violation of equality rights guaranteed in the Charter of Rights and Freedoms.

Mary Cornish says the decision indicates the Charter holds governments accountable to individual citizens.

“While mandatory retirement of justices of the peace, as of other judicial officers in Ontario, is an acceptable feature of their security of tenure, the evidence is that the legislative objective can be accomplished in a significantly less intrusive manner,” said Justice George Strathy.

The case Association of Justices of the Peace of Ontario v. Ontario (Attorney General) involved the organization that represents JPs and three former justices of the peace of the Ontario Court of Justice, Brenna Brown, Moreland Lynn, and Meena Nadkarni. Each of the three wanted to continue working after reaching age 70 but were barred from doing so.

In a 52-page judgment, Strathy ruled in favour of the applicants and declared that parts of the Justices of the Peace Act violate s. 15 of the Charter. He ordered a “reading in” of provisions to be applied to the retirement of provincial court justices that states, “Retirement at age 65 with continuation in office to 75, subject to the annual approval of the chief justice of the Ontario Court of Justice.”

Strathy said that raising the retirement age to 75 meets objectives in the Charter and Criminal Code, while also elevating the stature of justices of the peace.

Raising the age to 75 will “assist in attracting qualified and accomplished individuals to the position and will allow them the option of retiring at age 65 or continuing in their roles, making useful and satisfying contributions to their bench and to society,” he added.

Strathy also noted the “significant evolution” of justices of the peace in Ontario over the past 40 years.

“This evolution reflects the important role played by justices of the peace in the administration of justice in the province and the significance attached to that role by the legislature,” he said.

“It shows a desire to attract highly qualified applicants to the position and to provide a structure, compatible with their judicial independence, to support the performance of their responsibilities.”

The Ministry of the Attorney General is not commenting on the case during the appeal period, a spokesman told Law Times.

Mary Cornish of Cavalluzzo Hayes Shilton McIntyre & Cornish LLP, who represented JPs in the case, says the decision indicates that the Charter holds governments accountable to individual citizens.

“One of the things that troubled the court here was that the government in the period through the Human Rights Code reform and then through the Access to Justice Act reform didn’t engage in any kind of equality analysis to determine whether or not the justices of the peace should remain at the age 70 retirement age, even though they were abolishing mandatory retirement for everybody else,” says Cornish.

The government chose age 70 as an appropriate retirement age for justices of the peace in the 1980s, says Cornish. A report on the justice of the peace system at that time suggested that retirement shouldn’t be mandated at age 80 or age 60, so age 70 was selected.

“And that’s it. Really, on the record, that’s it - that is the only evidence of the government analysis,” says Cornish.

She says the matter wasn’t considered again until amendments to the Human Rights Code were brought in around the time mandatory retirement was abolished in December 2006.

She says the government decided to keep the exceptions at that time for provincial court judges, case management masters, masters, and justices of the peace. Other members of the judiciary have a mandatory retirement age of 75, says Cornish.

The case also highlights the government’s approach to the issue of discretion it holds in what it calls “line drawing” in terms of distinctions made between groups and individuals in public policy.

“The court spends a lot of time in dealing with that argument and rejecting it in this context, because the attorney general in argument was very clear to the court in saying it had no business to be evaluating [the mandatory retirement age] because the government got to make up its mind about that,” says Cornish, adding that the justices of the peace accepted that a mandatory retirement age was necessary, but said that age should minimally impair their equality rights.

The court agreed with the JPs’ argument that, since a government expert said a retirement age for justices of the peace anywhere between 70 and 75 is acceptable, that 75 should be the age.

Cornish says she hopes government lawyers take heed of Strathy’s analysis on the importance of governments considering Charter guarantees when making public policy.

“That’s supposed to be an ongoing process,” she says. “Here, we kept actually asking them to do it, but they didn’t do it. But under the Charter, it’s actually a proactive obligation they have. It’s not supposed to be something people have to keep reminding them about.”

The next step in the matter is for the justices of the peace to work with the government and office of the chief justice in finding out which justices of the peace want to return to their judicial duties, says Cornish. She doesn’t have a precise estimate of how many JPs might come forward, but says, “It’s certainly a pretty significant number.”

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