0023
1 12th January, 1999
2
3 The Honourable Court of Queen's Bench
4 Mr. Justice McMahon of Alberta
5
6 A. D. Hunter, Esq., Q.C.) For the Applicants
7 L. A. Taylor, Ms. )
8 R. C. Maybank, Esq. ) For the Respondent
9 C. L. Enns, Ms. )
10 T. Miner, CSR(A) Official Court Reporter
11 ----------------------------------------------------------------
12 THE COURT: Mr. Maybank, are you ready to
13 continue with Dr. Macleod?
14 MR. MAYBANK: Yes, I am, sir.
15 THE COURT: Good morning, Dr. Macleod. You
16 understand you're still under oath?
17 A I do.
18 RODERICK CHARLES Macleod, sworn, examined by Mr. Maybank:
19 Q Dr. Macleod, at the close of proceedings yesterday, we
20 had just finished the first section of your report on
21 Introduction. The next section of your report is
22 headed The English Origins. Are there any points of
23 particular interest or relevance that you would like
24 to bring forward to the court?
25 A Briefly, the office of justice of the peace is very
26 old. It's so old that historians and antiquarians
27 spend a lot of time arguing about exactly when it did
0024
1 begin, some seeing its origins back as far as
2 Anglo-Saxon times, but it really takes its --
3 something like its present form in the 14th century,
4 when the Statute of Winchester, 1361, sets out some of
5 the powers and duties of the justice of the peace.
6 From that point, the office gradually increases
7 in the powers and responsibilities of the office of
8 justice of the peace till about the middle of the 18th
9 century, and then it begins a gradual decline in
10 England until around the end of the 19th century; and
11 then, interestingly enough, in the 20th century, the
12 office recovers some of the former powers.
13 Q Are you speaking about in England or in Canada?
14 A I'm speaking about in England.
15 Q And you used a word that I was unfamiliar with and had
16 to look up, the word "protean"?
17 A Yes.
18 Q Could you explain that to the court, please?
19 A Yes, it means changeable, able to change its shape.
20 It's from the Greek God Proteus, who was apparently
21 able to change his shape.
22 Q And why did you use that adjective?
23 A Well, because the office of justice of the peace has
24 fulfilled so many different functions in England over
25 the years. It was a judicial office with many
26 different powers and responsibilities associated with
27 it at various times.
0025
1 It was also an administrative office. Justices
2 of the peace ran local government in England for much
3 of the history of that country. They did things like
4 setting weights and measures and licencing ale houses
5 and all these various local government
6 responsibilities. It was, in other words, a sort of
7 an all-purpose institution that governments could use
8 as necessity required.
9 Q And it's existed a very long time?
10 A A very long time, at least -- well, seven or eight
11 hundred years.
12 Q In the next section of your report, you review the
13 justices of the peace and police magistrates in
14 Canada, 1749 to 1906. Can you very briefly review
15 that section of your report?
16 A Certainly. The justice of the peace gets transferred
17 across the Atlantic Ocean to what eventually becomes
18 Canada in the middle of the 18th century; in other
19 words, just at that point when it's about at its time
20 of maximum power and responsibility in England; and
21 the English make quite a determined effort to
22 transplant the institution wholesale to their colonies
23 in North America.
24 In other words, they attempt to use justices of
25 the peace for all the sorts of things that they're
26 used in England; that is to say, as -- as the chief
27 judicial officers in the lower courts to try minor
0026
1 cases of all sorts, and likewise to use them for
2 administrative purposes in most -- in fact, all of the
3 British North American colonies.
4 Before there are regular municipal institutions,
5 it's justices of the peace who do the local
6 administration. Until the City of Toronto was
7 incorporated in the early 1830s, for example, it's the
8 local justices of the peace who run local government.
9 Q You also reviewed the matter of appointments and
10 patronage in that section. Would you like to make a
11 comment on that?
12 A Yes. In the 18th and 19th century, patronage in
13 government appointments of all sorts was the norm. It
14 was taken for granted, and justices of the peace
15 certainly fell in with that pattern. In other words,
16 you did not get appointed as justice of the peace
17 unless you were a friend of the party in power at the
18 time the appointment was made.
19 Q And just to go outside that section a bit, do you have
20 any comment on that in relation to JPs in the 20th
21 century?
22 A The appointments of justices of the peace in the
23 Province of Alberta after 1905 continued, at least in
24 form, along these lines; that is to say, the standard
25 and universal practice when appointing a justice of
26 the peace in Alberta, up to 1991, was to have
27 suggested appointees run past the Member of the
0027
1 Legislative Assembly for that area for their
2 approval.
3 Q Back to the section 1749 to 1906, you described the
4 powers of a single justice of the peace in 1867.
5 A Yes.
6 Q Could you briefly review that?
7 A Okay. 1867. Right. A justice of the peace could
8 issue warrants, search warrants and arrest warrants.
9 They could conduct preliminary inquiries. They could
10 investigate minor offences.
11 It's worth noting that before there were
12 organized police forces in most parts of the country,
13 the justice of the peace also performed those
14 functions; that is to say, they were charged with
15 investigating reports of crimes. They could try a
16 wide variety of summary offences. They could bind
17 those accused of more serious offences over to a trial
18 in superior courts. They could commit accused persons
19 to jail to await trial. That's a single justice.
20 Q When you said they could try summary offences, would
21 that be under provincial legislation or the Criminal
22 Code?
23 A There was no Criminal Code in 1867. There were a
24 variety of criminal statutes that don't get
25 consolidated into the Criminal Code until 1892.
26 Q Now, you also describe some types of local changes to
27 the office of justice of the peace.
0028
1 A Yes. The office of justice of the peace was one that
2 differed considerably from province to province in the
3 late 19th century. Generally speaking, the older
4 provinces, and particularly the Atlantic provinces,
5 tended to follow the English model more closely than
6 provinces farther west; that is to say, they --
7 justices of the peace in places like Nova Scotia and
8 New Brunswick had greater administrative
9 responsibilities than they did elsewhere.
10 Q And at that time, could you describe the categories of
11 justices of the peace?
12 A Well, there were no categories of justice of the
13 peace. You were a justice of the peace or -- or
14 you --
15 Q Right. Or the different types of persons who were
16 justices of the peace?
17 A Different types of persons? I'm not sure that I
18 entirely understand that question.
19 Q Okay, that's fine. In the late 19th century, you
20 describe situations where -- I think you called them
21 sweeping purges of appointments. Can you describe
22 those, please?
23 A Specifically in the North West Territories, the old
24 North West Territories, in the last three decades of
25 the 19th century, there were, if memory serves me, two
26 occasions in which the government of the North West
27 Territories issued blanket cancellations of all
0029
1 justice of the peace commissions, and reappointed
2 some, but not all, of the individuals and appointed
3 new -- new ones.
4 Q Why would some individuals not be reappointed?
5 A Well, it appears, according to the -- the only study
6 of the episodes that's taken place, which was a thesis
7 done by an individual by the name of Reynolds, and I
8 think he's quite right in saying that it was done
9 partly on administrative grounds and partly on
10 political grounds; that is to say, the government was
11 anxious not to reappoint their political opponents to
12 the office of justice of the peace.
13 Q You described a rise in the office of stipendiary
14 magistrate in the -- during that period of time.
15 Could you describe what was happening with the office
16 of JP at that time?
17 A In the North West Territories?
18 Q No, in the 19th century is what you're speaking of, I
19 believe.
20 A What was happening to the office of JP? I'm not quite
21 sure here what you're -- what you're asking me.
22 MR. HUNTER: My Lord, it would be helpful to
23 me, maybe others, if you could indicate the page that
24 you're taking the witness to in the report.
25 THE COURT: Yes, feel free to take him to his
26 report, Mr. Maybank.
27 MR. MAYBANK: All right.
0030
1 Q If we look at page 10 of your report, Professor
2 Macleod, the first full paragraph there --
3 A Right.
4 Q -- about midway down.
5 A Yes. What happens in the late 19th century is that
6 there is an increasing tendency to use stipendiary
7 magistrates to try criminal cases, and there is a
8 general decline in the use of justices of the peace to
9 try criminal cases. In other words, the stipendiary
10 magistrates are granted increasing summary powers and
11 get -- one of the big things that the stipendiary
12 magistrates get in the late 19th century is the
13 authority, with the consent of the accused, to try
14 indictable -- most indictable offences. There's no
15 corresponding change in the authority of justices of
16 the peace.
17 Q In the next section of your report, you deal with
18 justices of the peace in the North West Territories.
19 A Right.
20 Q And near the top of page 12, you mention the nature of
21 the appointments and whether they were at pleasure at
22 the time. Could you expand on that?
23 A This is one of those questions that you really can't
24 give a blanket answer to because there was no piece of
25 legislation in the North West Territories that
26 governed the appointments of justices of the peace, so
27 you have to look at the individual commissions that
0031
1 were issued to the justices.
2 Now, I make no claim to have looked at all or
3 even any substantial number of those commissions. The
4 ones I have looked at are all at pleasure.
5 Q In the full paragraph on that page, you mention or
6 describe the practice of appointing police officers as
7 justices of the peace, and can you describe that
8 practice and how long it lasted?
9 A Certainly. This was one of the unique features of the
10 North West Territories as far as the Canadian system
11 of administration of justice was concerned; that is to
12 say that once the North West Mounted Police were
13 created in 1873, the government adopted a practice of
14 appointing, as I mentioned yesterday, initially
15 superintendents, and then, after a couple of years,
16 inspectors as well to -- as ex officio justices of the
17 peace. This was a practice that lasted throughout the
18 period in the North West Territories until the
19 creation of the provinces of Alberta and Saskatchewan
20 in 1905; and in fact, mounted police officers, acting
21 as justices of the peace, tried the bulk of criminal
22 cases in the North West Territories in that period.
23 Q Near the bottom of page 13, I guess that full
24 paragraph, you're speaking about the purges that we
25 spoke of earlier.
26 A Yes.
27 Q And patronage. And then you look -- you review the
0032
1 matter of whether JPs might expect to lose their jobs
2 because of political affiliation. Can you make a
3 comment on that, please?
4 A As I mentioned earlier, it appears that people were --
5 in these general purges of the justices of the peace
6 that some did lose their positions on political
7 grounds. I discovered no indication that individual
8 justices of the peace were fired on grounds of
9 political affiliation.
10 Q And that's based on the review of the files that you
11 conducted?
12 A Yes, and it's also based on Reynolds' thesis. He did
13 a pretty thorough analysis of the situation, and he
14 found no such dismissals.
15 Q Are you suggesting that there were no other reasons
16 that they might lose their position, by making that
17 statement?
18 A Oh, certainly not.
19 Q And at the top of page 14, you review the fees that
20 were paid to justices of the peace during that
21 period.
22 A Yes. The fees were very low. Indeed, as I -- as I
23 suggest there, the fees payable to justices of the
24 peace weren't even sufficient to cover the costs of
25 the justices' handbooks and copies of the statutes
26 that they were required to -- were required to have,
27 and there was a prolonged fight between the federal
0033
1 and the territorial government over who should pay for
2 these. It would essentially be difficult -- it would
3 be -- have been impossible for anyone to even begin to
4 try to make a living from the fees that were paid to
5 justices of the peace.
6 Q The next section of your report deals with the period
7 in Alberta from 1905 to 1998. You stated that the
8 first provincial statute provided that justices of the
9 peace were appointed at pleasure. Can you tell us
10 what happened with the legislation in relation to that
11 provision?
12 A The -- the "at pleasure"?
13 Q Yes.
14 A It is dropped from the -- from the legislation in
15 1908.
16 Q And what significance would you attach to that?
17 A I wouldn't attach any significance at all to that.
18 Taken by itself, it might seem as if there was a
19 change in the attitude, but if you look at the
20 Interpretation Act, it makes it quite clear that all
21 appointments, statutory appointments, are to be at
22 pleasure unless otherwise stated.
23 Q Dr. Macleod, could I refer you to Volume 1 of the
24 legislative appendix of the Respondent?
25 A All right.
26 Q And tab 3 of that appendix --
27 A Yes.
0034
1 Q -- includes the Interpretation Act from 1906. Was
2 it --
3 THE COURT: I'm sorry, I have your book of
4 authorities, Volume 1. That's not what I want.
5 MR. MAYBANK: No, there should be a legislative
6 appendix, sir. Do you have that?
7 Madam Clerk, do you have a copy of that?
8 THE COURT: No, I don't recall seeing that;
9 unless it's -- it's not appended to the affidavit, is
10 it?
11 MR. MAYBANK: No, sir, it was a separate bound
12 volume, similar to the books of authority.
13 THE COURT: Well, I have four green volumes,
14 three authorities and your argument.
15 MR. MAYBANK: Perhaps, sir, somehow your working
16 copies didn't get forwarded to you. I apologize for
17 that.
18 THE COURT: Okay, thank you. Tab 3?
19 MR. MAYBANK: Yes.
20 Q The "at pleasure" provision in the Interpretation Act;
21 is that Section 36 that you were referring to?
22 A That's correct.
23 Q Could you read that, please?
24 A Certainly. Section 36 reads:
25
26 "All officers now appointed or hereafter
27 appointed under the authority of an Act or law,
0035
1 whether by commission or otherwise, shall remain
2 in office during pleasure only unless otherwise
3 authorized by law;"
4
5 Q And Section 33 may also be relevant.
6 A Section 33 on the previous page reads:
7
8 "Words authorizing the appointment of any public
9 officer or functionary or any deputy include the
10 power of removing or suspending him,
11 re-appointing or re-instating him or appointing
12 another in his stead in the discretion of the
13 authority in whom the power of appointment is
14 vested."
15
16 Q And is it your understanding that -- or what is your
17 understanding with respect to those types of
18 provisions in the Interpretation Act? Were they
19 continued?
20 A Yes, they were continued, I believe, until 1980.
21 Q And we have under tab 4 the Revised Statutes, 1955.
22 A Yes.
23 Q And --
24 A 1955, Section 30 is very similar to the earlier
25 Section 33. It says:
26
27 "Words in an Act authorizing the appointment of a
0036
1 public officer or functionary or a deputy shall
2 be deemed to include the power of
3
4 (a) removing or suspending him,
5 (b) reappointing or reinstating him, or
6 (c) appointing another in his stead, in the
7 discretion of the authority in whom the power of
8 appointment is vested."
9
10 And Section 33 reads:
11
12 "All officers lawfully appointed, whether by
13 commission or otherwise, shall only remain in
14 office during pleasure unless otherwise
15 authorized by law."
16
17 Q And you mentioned 1980, under tab 6, there's the
18 Revised Statutes, 1980, the Interpretation Act?
19 A Yes. The relevant sections there are Section 19,
20 which reads:
21
22 "The authority under an enactment to appoint a
23 public officer is authority to appoint during
24 pleasure."
25
26 And Section 20:
27
0037
1 "Words in an enactment authorizing the
2 appointment of a person include the power of... "
3
4 and the relevant one is:
5
6 "(b) terminating his appointment or removing or
7 suspending him;"
8
9 Q Now, Dr. Macleod, if it came to your attention that
10 the wording in the Justice of the Peace Act changed by
11 dropping the words "at pleasure" -- sorry. And spoke
12 of appointments unless sooner revoked, or finally
13 dropped any mention of revocation in the Act itself,
14 would you, in your opinion, attach any significance to
15 that?
16 MR. HUNTER: It sounds like a question of law,
17 but I'm happy to have him try to answer it.
18 THE COURT: From a historian's point of view
19 I'll accept that.
20 MR. MAYBANK: Sure.
21 A It would seem to me, from a reading of those words,
22 that -- that they would tend to make the dropping of
23 the "at pleasure" phrase from the Justice of the Peace
24 Act irrelevant.
25 Q Now, you mention at the top of page 15 that during the
26 appointment process the police might be involved.
27 Could you describe that for us?
0038
1 A That was very often the case, and I -- I looked at
2 numerous justice of the peace files in the provincial
3 archives for various places in the province and -- and
4 various times from the 1920s through the 1970s, and in
5 a great many of them, the police, usually the R.C.M.P.
6 but often the town police, would be the ones who wrote
7 to the Attorney General's department, informing them
8 of the need for a justice of the peace and often
9 recommending individuals for appointment. Sometimes
10 those recommendations were accepted; sometimes they
11 weren't.
12 Q In the next paragraph on page 15, you mention the
13 elimination of the requirement for three years'
14 experience at the bar for magistrates. I believe
15 there was a correction to a date brought to your
16 attention.
17 A Yes, I was in error in identifying 1922 as the date.
18 It should be 1909. I note that the Kirby Report makes
19 the same error on page 4, I believe it is, and I may
20 have taken it from that.
21 Q And what was the purpose of eliminating that
22 requirement of the three years' experience?
23 A What the Government of Alberta began to do in the
24 early part of the century, as an alternative to having
25 two justices of the peace sit together to try cases,
26 as was the practice in many other parts of Canada, the
27 Alberta government began appointing these unpaid
0039
1 police magistrates, who had the power of two justices,
2 in remote areas to -- to sit trials and perform the
3 other functions, issuing warrants and processing and
4 so on.
5 THE COURT: Mr. Hunter?
6 MR. HUNTER: My Lord, when my learned friend
7 asks about purpose, I find that a bit awkward. All a
8 historian can say is what he sees, and if you're
9 intending to lead evidence for legislative purpose, I
10 don't think this is the way to do it.
11 THE COURT: Well, I take it you're seeking his
12 opinion from his reading as to what he deduces the
13 purpose may have been.
14 MR. MAYBANK: Exactly, sir. I wasn't asking the
15 legislative intent, but from -- certainly from your
16 reading of the files.
17 THE COURT: I'll accept that it's his opinion
18 as to what the intent may have been.
19 Q MR. MAYBANK: Now, these R.C.M.P. appointments
20 that you described, did they continue actively after
21 the Second World War?
22 A Which R.C.M.P. --
23 Q You were mentioning that R.C.M.P. officers were
24 appointed as justices of the peace at one point.
25 A R.C.M.P. senior officers, inspectors and
26 superintendents, continued to be appointed in the
27 Province of Alberta and in Saskatchewan for the whole
0040
1 period up to 1989. They don't appear, from the 1950s
2 onward, to have exercised those functions; but after
3 the Second World War, you start to get the appointment
4 of another kind of police justice of the peace. Is
5 this what you're referring to? Is this what you're
6 asking me about?
7 Q That's fine. I was interested in what you just said.
8 A Right.
9 Q You describe on page 16, in the second paragraph, the
10 creation of new categories of justices of the peace,
11 staff justices. Could you expand on that?
12 A Yeah. After the Second World War, the government
13 began appointing staff justices of the peace, who were
14 clerks, court clerks, with restricted powers; that is
15 to say, the letters of appointment that went out to
16 them made it clear that they could perform limited
17 functions. They were specifically excluded from
18 trying cases.
19 Q On page 17, the first paragraph, you stated that by
20 the 1950s, the
21
22 "... higher volumes of cases were creating
23 pressures for a more differentiated and
24 specialized system of inferior courts."
25
26 Could you describe the developments that took place
27 in that regard?
0041
1 MR. HUNTER: What paragraph are you reading
2 from?
3 A The first full --
4 MR. MAYBANK: The first one.
5 A -- full paragraph.
6 MR. HUNTER: Thank you.
7 A From the 1950s onward, there's a huge increase in the
8 business of the courts. For one thing, the population
9 of the province is growing very, very rapidly. It
10 doubles over a period from about 1950 to 1970, and the
11 a number of cases coming before the courts increases
12 even more rapidly.
13 The result is that the government does a number
14 of things as far as justices of the peace are
15 concerned. One of the things they do to streamline
16 the operations of the courts and expedite the business
17 of the courts is to start appointing staff justices of
18 the peace to handle some of these functions.
19 They also begin appointing these police justices
20 to -- specifically for traffic tickets, and their
21 duties are limited to those. And, of course, the big
22 change comes in 1971, with the move to replace the
23 magistrates with Provincial Court judges.
24 Q MR. MAYBANK: And you have a comment on -- or
25 perhaps I could do it this way. Could I refer you to
26 the Hawrelechko affidavit, at tab M, which is the
27 Irving Report.
0042
1 A Thank you. Tab M?
2 Q 'M', at page 42. And the third paragraph down reads:
3
4 "In recent years, in Alberta particularly, the
5 judicial functions of justices of the peace have
6 been enlarged greatly. By virtue of the
7 Provincial Court Judges Amendment Act, justices
8 of the peace have been granted all the powers
9 with respect to judicial interim release as are
10 exercisable by Provincial Court Judges. They
11 also have the power to receive and swear
12 informations, issue process, grant search
13 warrants, receive pleas with respect to certain
14 provincial offences, impose fines or time in gaol
15 for default of payment of fine, grant or withhold
16 time for payment of a fine, or extensions of time
17 for payment of a fine."
18
19 Do you agree with that statement?
20 A No, I do not. I think that those are all functions
21 that justices of the peace had performed in Alberta
22 for many years prior to the period that the Irving
23 Report is referring to, which I assume is the -- since
24 it was written in 1985. He says "in recent years". I
25 suspect what he means is the 1970s and 1980s.
26 MR. HUNTER: My Lord, can my friend help me as
27 to where this report is referred to in Exhibit 2?
0043
1 MR. MAYBANK: Sir, the specific report isn't,
2 but --
3 MR. HUNTER: Thank you.
4 MR. MAYBANK: But Dr. Macleod is certainly
5 giving evidence with respect to the role of the
6 magistrates and justices of the peace and their --
7 MR. HUNTER: I'm not objecting.
8 MR. MAYBANK: And their jurisdiction.
9 MR. HUNTER: I wasn't objecting. I was just
10 asking where it was.
11 THE COURT: I take it that Dr. Macleod has
12 reviewed the Irving Report.
13 MR. MAYBANK: Yes.
14 A I have.
15 THE COURT: All right.
16 Q MR. MAYBANK: You mentioned the change of
17 magistrates to Provincial Court judges. Did that
18 relate to any changes in the role of justices of the
19 peace, or could you describe that change in more
20 detail?
21 A Yeah, the move to Provincial Court judges meant that
22 -- one of the things that resulted from that was that
23 the provincial government stopped appointing justices
24 of the peace with the power to try cases altogether in
25 1971. All the letters of appointment that go out
26 after that time specifically exclude the power to try
27 cases. So in other words, you have a period of 20
0044
1 years in Alberta, from 1971 till 1991, when justices
2 of the peace no longer try cases.
3 Q And --
4 THE COURT: Where is the statutory authority
5 for that restriction?
6 A There is no statutory authority. In fact, as far as I
7 can tell, the commissions, the justice of the peace
8 commissions, that are -- that go out at this time have
9 no -- they are identical to the ones that go out
10 earlier. What differs is the letter that goes out
11 with the commission, saying you're allowed to do these
12 duties, and you're not permitted to do -- to do
13 others.
14 THE COURT: But you have found no statutory
15 authority for that restriction.
16 A Certainly not.
17 THE COURT: That some civil servants put in a
18 letter.
19 A Exactly.
20 THE COURT: Thank you.
21 Q MR. MAYBANK: If the jurisdiction over sitting
22 trials was basically taken away from JPs, what
23 happened with respect to the jurisdiction of the
24 magistrates who had become Provincial Court judges
25 then, and their trial work?
26 A Well, it was increased. By 1973, if I recall the
27 figure, Provincial Court judges were trying something
0045
1 like 93 percent of the -- of all criminal cases.
2 Q You mentioned the creation of the category of justices
3 of the peace called hearing officers in 1978. How did
4 that come about?
5 A That I see as a continuation of the process of
6 creating specialized kinds of justices of the peace to
7 help expedite the increasingly crowded courts in
8 Alberta; in other words, to take some of the pressure
9 off Provincial Court judges.
10 Q And what was the nature of the duties that they took
11 on?
12 A Well, they did two things: Primarily they heard bail
13 applications; and the -- the other primary duty was to
14 deal with first appearances in traffic, municipal
15 by-law cases, and I believe fish and wildlife was also
16 included.
17 Q And you mention the creation of an office of justice
18 of the peace to hear trials in 1991?
19 A Yes. In 1991, the province creates the office of
20 sitting justice of the peace to staff the traffic
21 courts in Calgary and Edmonton. The sitting justices
22 were required to have legal training and five years'
23 experience, I believe, at the bar.
24 Q And what was the nature of their jurisdiction in terms
25 of the trials they could sit?
26 A Their trial jurisdiction was confined to traffic and
27 some other minor offences. Criminal jurisdiction was
0046
1 specifically excluded from the -- for the sitting
2 officers. Or the sitting justices of the peace,
3 pardon me.
4 Q So was their jurisdiction broader or narrower than the
5 JPs who could sit trials prior to '71?
6 A It looks to me like it's narrower, in the sense that
7 they can no longer -- they can no longer deal with
8 criminal matters.
9 Q At the bottom of page 17, you deal with the payments
10 to justices of the peace. Could you review that very
11 quickly, please?
12 A Yes. If you go back to the beginning of the province
13 in 1905, fees, for example, for the taking of
14 information or issuing a warrant, payable to a
15 justice, were 50 cents in each case. By the
16 mid-1960s, the fee for taking an information had risen
17 all the way up to a dollar, and the fee for warrants
18 was 50 cents.
19 Q And what about the payment of other categories of
20 justices of the peace? You were describing, I take
21 it, the fee justice of the peace in the entitlement?
22 A That's correct. Some fees were specified by the
23 Criminal Code, and in those cases, salaried employees
24 such as police officers or staff justices, letters of
25 appointment required them to return any fees that they
26 received to the Attorney General's department, any
27 fees that they were entitled to as justices of the
0047
1 peace. In other words, they received no remuneration
2 except for their salaries.
3 Q Are you aware whether staff JPs ever received benefits
4 and were able to retain them for conducting JP
5 functions outside of office hours?
6 A Yes, there was a provision for overtime work in
7 effect. Extra -- extra pay for that.
8 Q And are you aware of the provision for payment of
9 hearing officers?
10 A Yes, hearing officers were salaried employees of the
11 Attorney General's department.
12 Q And are you aware of when their remuneration was
13 specified by regulation rather than through the
14 collective agreement?
15 A That was after the -- the 1991 changes, by regulation,
16 they -- they continued for a time after 1991, I
17 believe, to -- to be paid.
18 Q Perhaps I could refer you to the legislative appendix,
19 Volume 1. Just a moment.
20 I'm sorry, I should have referred you to the
21 Hawrelechko affidavit again, Exhibit AA.
22 A AA?
23 Q Near the back.
24 A Must be very near the back. This one only goes up to
25 'S'. Oh, no, 'A', sorry.
26 Q If you look on page 523?
27 A Yes.
0048
1 Q Under Terms and Conditions of Service?
2 A Yes.
3 Q And it refers to salary of non-sitting justices and
4 lists a number of individuals in the schedule. And
5 what was the date of that regulation?
6 A June, 1995.
7 Q Now, at the top of page 18 of your report, you
8 describe the tenure enjoyed by justices of the peace
9 up to 1991 and subsequent to 1991. Could you review
10 that, please?
11 A Right. Tenure until 1991 was at pleasure. Justice of
12 the peace commissions could be cancelled at any time,
13 and were on numerous occasions; if, for example, the
14 individual moved out of the province, if he took
15 employment that the government considered unsuitable
16 for justices of the peace. This was a rather odd
17 collection of occupations. Ministers or priests, the
18 government excluded from JP appointments. Owners of
19 bars was another group that they -- that they put into
20 this category, and there are a number of occasions in
21 which people who took up these occupations were forced
22 to -- were -- yeah, well, were forced to give up their
23 justice of the peace commissions.
24 Q What if the government decided there was no longer a
25 need for a JP?
26 MR. HUNTER: Surely there's another way of
27 asking that question.
0049
1 Q MR. MAYBANK: Can you provide --
2 MR. HUNTER: The government can tell us those
3 things if they want.
4 Q MR. MAYBANK: Can you provide some other
5 examples of when the government may have terminated
6 appointments?
7 A In the 1970s and early 1980s, the government began a
8 process of, I suppose it could be called, weeding out
9 the fee justices of the peace. The justices were
10 required, as part of their duties, to fill out returns
11 of the duties that they undertook; and on the basis of
12 those, the government, in the 1970s and 1980s, did a
13 series of I suppose you could call them surveys, to
14 determine whether justices of the peace were needed
15 any longer in specific areas. And on the basis of
16 those surveys of the actual duties that had been
17 performed by these individuals, a number of justices
18 of the peace were dismissed at that time. This is
19 according to the testimony of Joyce Topilko in the
20 Magee case. She was in charge of the justice of the
21 peace program at that time.
22 Q And were there other examples that come to mind?
23 A The other principal example is the government's
24 decision in 1989 to eliminate all police justice of
25 the peace appointments of both varieties; that is to
26 say, the senior officer appointments that had existed
27 since way back in territorial times, and the more
0050
1 recent kind of police appointments to deal with
2 traffic tickets. And in fact, all those appointments
3 were cancelled by an Order in Council in 1989 that
4 took effect in January of 1990.
5 Q I believe in the last three -- or the second and third
6 last sentences in that top full paragraph on page 18,
7 there are some errors that you became aware of?
8 A Yes.
9 Q Could you --
10 A Having to do with compulsory retirement.
11 Q Some dates?
12 A Yes. And I had the date of 1955 for the introduction
13 of compulsory retirement. That's incorrect. The date
14 should be 1965.
15 MR. HUNTER: What page are we on?
16 A Sorry, it's the first full paragraph on page 18.
17 MR. HUNTER: Thank you.
18 A In 1965, the legislation introduced compulsory
19 retirement at age 75 for justices of the peace, and
20 age 70 for provincial judges. Six years later, in
21 1971, the age was reduced to 70 for justices of the
22 peace as well.
23 Q So where it reads 75 for provincial judges and 75 --
24 or -- and justices, it should read age 75 for justices
25 and --
26 A 70.
27 Q -- 75 (sic) years for provincial judges.
0051
1 A That's -- and 70 for provincial judges, that's
2 correct.
3 Q And the next sentence?
4 A The next sentence should read:
5
6 The age of retirement for justices of the peace
7 was reduced to 70 six years later.
8
9 Q And that would have been in 1971?
10 A In 1971.
11 Q In the next section of your report, you state a
12 question that was asked of you:
13
14 "Was there a tradition or practice in the (old)
15 NWT prior to 1905 and in Alberta since 1905 that
16 justices of the peace enjoyed security of tenure
17 or financial security?"
18
19 What is your understanding of the meaning of "security
20 of tenure"?
21 A I understand that security of tenure means that you
22 cannot be removed from your position without cause
23 after an impartial inquiry.
24 Q And what is your understanding of the meaning of
25 "financial security"?
26 A My understanding of the meaning of financial security
27 is that your employer cannot arbitrarily reduce or
0052
1 eliminate your salary.
2 Q Could you review the opinions provided in that section
3 of the report?
4 A Yes. It's my opinion that there was no security of
5 tenure for justices of the peace in the North West
6 Territories prior to 1905, or in Alberta from 1905 to
7 1991, and that there was no financial security in
8 those periods likewise.
9 Q And what is your opinion on the security of tenure
10 after 1991?
11 A After 1991, with the introduction of the Justice of
12 the Peace Review Committee, justices of the peace had
13 security of tenure in that they could be removed only
14 for cause after a judicial inquiry.
15 Q And in your opinion was this security of tenure after
16 1991, what type of security of tenure?
17 A Well, I would call it a limited security of tenure.
18 It isn't absolute in the sense that justices couldn't
19 be removed for -- under any circumstances whatsoever,
20 simply for -- for cause and after the proper inquiry.
21 Q At the time of the preparation of your report, were
22 you aware of reforms in the 1970s to the Supreme Court
23 of Canada, the Federal Court of Appeal and -- and
24 Provincial Courts of Appeal?
25 A Yes.
26 Q And how did they impact on the role of -- or the
27 office of justice of the peace?
0053
1 A I cannot see that the reforms to the Supreme Court, to
2 the Federal Court and the Courts of Appeal in the
3 province, important as they surely were, had any
4 impact at all on justices of the peace.
5 Q And you've described some of the changes to the
6 Provincial Court at the time. Did that have any
7 impact?
8 A Yes, I think it did. I think the changes that took
9 place in the Provincial Court after 1971 had some
10 quite clear impacts on the justices of the peace, the
11 most important perhaps being the province's decision
12 to stop justices of the peace from hearing cases
13 altogether.
14 Q And are you aware of any changes to the Constitution
15 in the early '80s, and did they have any impact on the
16 role or office of the JP?
17 A The --
18 MR. HUNTER: That may very well be a question
19 for Your Lordship to determine. I gather we're having
20 another historian's view about the matter.
21 MR. MAYBANK: Sir --
22 MR. HUNTER: Which is fine.
23 THE COURT: It will go to weight.
24 MR. MAYBANK: Yes. Let me rephrase that
25 question.
26 Q Did you -- at the time of the writing of your report,
27 were you aware of any changes to the Constitution that
0054
1 happened in the early '80s?
2 A In 1982, the Charter -- Charter of Rights and Freedoms
3 came into effect, which had a huge impact on Canadian
4 law in a great many areas.
5 Q And was that a consideration for you when you were
6 preparing your report?
7 A I suppose so, although -- in the sense that there were
8 certain cases arising from the Charter that had
9 defined what was meant by security of tenure, which
10 was the question that I was asked to look at.
11 Q In your opinion, was there an evolving attitude
12 towards the office of the justice of the peace that
13 was taking place for the whole period prior to 1991?
14 A An evolving attitude on the part of who?
15 MR. HUNTER: Right.
16 Q MR. MAYBANK: Let me rephrase that. You were
17 asked about the history and practice of the justices
18 of the peace and whether they enjoyed security of
19 tenure. Can you focus just on the history and
20 practice aspects in terms of security of tenure?
21 You've made it clear that you believe that they were
22 at pleasure.
23 A Yes, I -- as far as the history and practice is
24 concerned, it seems to me that the government acted
25 exactly the same way through the whole period from
26 1905 up to 1991 when it came to terminating the
27 appointments of justices of the peace. Like I can see
0055
1 no difference in their attitude or their actions in
2 that respect.
3 Q Thank you, Dr. Macleod. Those would conclude my
4 questions. Or I'm sorry, those wouldn't conclude my
5 questions.
6 MR. MAYBANK: My Lord, after I became aware of
7 my friend's position in relation to arguments on the
8 need for a Judicial Compensation Commission yesterday,
9 I spoke with Dr. Macleod at lunchtime. It seemed to
10 me that he had some useful evidence available to him
11 from some other work that I was aware that he had done
12 that would be helpful to the court with respect to the
13 issue of whether a Judicial Compensation Commission
14 might be required for any of the categories of justice
15 of the peace. His focus was particularly in relation
16 to sitting JPs, but some of the information or
17 evidence would be of assistance, I believe, to the
18 court in relation to the issue generally.
19 Dr. Macleod has prepared a brief supplementary
20 report which he provided to me this morning. I
21 provided it to my friends first thing this morning,
22 and I would propose, in light of the additional issue
23 that my friends have put before the court, to have Dr.
24 Macleod provide us with the benefit of the research
25 and information that he has that I believe that -- or
26 that the government believes would be relevant to this
27 new issue.
0056
1 THE COURT: Mr. Hunter?
2 MR. HUNTER: My Lord, I saw it one minute to
3 ten. I haven't had it. Perhaps I can read it over
4 the break and advise whether I oppose or what comments
5 I may have.
6 THE COURT: All right. Why don't we take the
7 morning break, 15 minutes.
8 (ADJOURNMENT)
9 THE COURT: Mr. Hunter, have you had a chance
10 to review that document?
11 MR. HUNTER: I have, My Lord, and I am sure my
12 friend will, in argument, show its relevance, and I
13 have no objection to it going in.
14 THE COURT: All right.
15 MR. MAYBANK: Thank you, sir.
16 THE COURT: Show it to the witness and have
17 him identify it.
18 Q MR. MAYBANK: Dr. Macleod, the clerk has
19 provided you with a copy of a document entitled
20 Supplementary Report of R.C. Macleod, dated January
21 12th, 1999. Did you prepare that report?
22 A I did.
23 MR. MAYBANK: May I have that report entered as
24 an exhibit, please?
25 THE COURT: Exhibit 3?
26 THE COURT CLERK: That's correct, My Lord.
27
0057
1 *EXHIBIT 3 - SUPPLEMENTARY REPORT
2 OF R.C. MACLEOD, DATED JANUARY 12,
3 1999
4
5 Q MR. MAYBANK: Dr. Macleod, in the first
6 paragraph of your report, you refer to events leading
7 to the transformation of police magistrates into
8 Provincial Court judges. Can you describe that for
9 us?
10 A Yes. The change took place in Alberta about the same
11 time as it took place in many other parts of the
12 country. I believe the first similar one was in
13 Ontario in 1969. This was a -- I think there are two
14 factors operating here: One is that there was an
15 atmosphere of change in the air, change and reform of
16 the judicial system. Mr. Trudeau was in power in
17 Ottawa; Mr. Lougheed was in power in Alberta; both new
18 to the job and I think anxious to reform it. And this
19 happened at the same time there was an enormous
20 increase in the number of cases coming before the
21 courts; so that once the Provincial Court was -- the
22 Provincial Court judges were created in 1971, they
23 had, almost immediately, a very important role in the
24 judicial system.
25 As I point out in the report, by 1973, the
26 Provincial Courts were not only handling almost all
27 the minor traffic and other cases, but 93 percent of
0058
1 the roughly 24,000 indictable offences tried in the
2 province in that year.
3 Now, the expansion of the jurisdiction of
4 Provincial Court judges has continued since that
5 time. The Criminal Code has been amended on a number
6 of occasions to add to the offences that Provincial
7 Court judges can deal with. They've been given a
8 responsibility in family law, and a number of
9 provinces have raised the limits on small claims that
10 they can hear.
11 Q And you compared that with the powers and
12 responsibility of justices of the peace in the same
13 period?
14 A Yes. In my opinion there was no corresponding
15 increase in the powers and responsibilities of
16 justices of the peace. And indeed, if you look at the
17 individual categories of justice of the peace, in some
18 respects their powers were narrowed in this period.
19 Q Can you give examples?
20 A If you take the generic fee justice of the peace who
21 had quite broad powers before 1971, and you look at,
22 for example, staff justices or police justices or the
23 hearing officers after 1978, their powers are, in each
24 case, less than those of the fee JPs. In 19 --
25 Q On page --
26 A I'm sorry.
27 Q Sorry, did you have something further?
0059
1 A No.
2 Q On page 2, the second paragraph, you refer to the
3 creation of the office of sitting justice of the peace
4 in 1991. What led to that creation?
5 A What led to that creation was the fact that the
6 Provincial Courts were bogged down with the
7 overwhelming number of cases that they had to deal
8 with, and the creating of sitting justices of the
9 peace was an effort to try to remove traffic and other
10 minor offences from those courts to enable them to
11 conduct their business more expeditiously.
12 Q You did some statistical work, I understand, comparing
13 the practice of the Provincial Court to the practice
14 of the Traffic Court where sitting justices of the
15 peace preside?
16 A Yes.
17 Q Could you review that, please?
18 A The statistical material from the period from about
19 1992, three, through 1997, '98, indicates that in
20 those years -- this is Calgary, these statistics are
21 taken from Calgary, roughly five times as many cases
22 are commenced in Traffic Court as in the adult
23 Provincial Court in Calgary, and that there's a
24 complete difference in the kind of cases. The Traffic
25 Courts are exactly what the name says. They're purely
26 and simply traffic courts. They don't do criminal
27 matters. They do a few other minor bylaw, municipal
0060
1 bylaw offences and things of that sort, whereas the
2 business of the Provincial Court is very largely
3 criminal.
4 Q Now, are you aware of the legal authority that sitting
5 justices of the peace have in terms of the types of
6 trials they can sit?
7 A Yes, they may not sit criminal matters.
8 Q But in terms of the ones that they can sit?
9 A Yes, there's a range of statutes that there are --
10 that they are responsible for. I'm not sure whether
11 it's in here or not.
12 Q We do have it in the legislative summary, but for the
13 purposes today, how does the actual practice that you
14 found of the sitting JPs compare to their authority?
15 A Well, they sit a much narrower range of cases than the
16 old fee JPs used to.
17 Q No, but in terms of --
18 A A much -- a much larger volume of cases, a huge volume
19 of cases in fact, but in terms of the kind of cases,
20 they are overwhelmingly traffic, traffic cases.
21 Q And the type of Provincial Court cases, I believe
22 you've got a chart --
23 A Yes.
24 Q -- attached to your report. Chart 2?
25 A Yes.
26 Q Can you describe what that chart illustrates?
27 A This is Calgary Provincial Court, and the large bars
0061
1 that you see on the left are federal cases; that is,
2 mostly Criminal Code matters.
3 The very small ones on the right are Highway
4 Traffic Act, Motor Vehicle Act, and other provincial
5 and municipal offences. So that it's apparent that
6 the -- you know, the overwhelming amount of the work
7 done by the Provincial Courts is in relation to
8 federal matters.
9 MR. MAYBANK: Thank you, Dr. Macleod. That
10 would conclude all my questions.
11 THE COURT: Thank you. Mr. Hunter?
12 MR. HUNTER CROSS-EXAMINES THE WITNESS:
13 Q Dr. Macleod, I would like to -- I need some help from
14 you on administrative functions and judicial
15 functions. There is a distinction, isn't there?
16 A There certainly is.
17 Q And would you agree that the conduct of the following
18 criminal jurisdiction functions are judicial
19 functions: the conduct of judicial interim release or
20 bail hearings, the confirmation or cancellation of
21 police process --
22 THE COURT: Mr. Hunter, just a moment.
23 Mr. Maybank?
24 MR. MAYBANK: This sounds like a legal
25 question. There are certainly criminal cases on
26 whether those matters constitute judicial or
27 administrative functions.
0062
1 MR. HUNTER: Well --
2 MR. MAYBANK: If my friend is asking for a legal
3 opinion.
4 MR. HUNTER: I would say he's a historian.
5 He's been giving evidence as a historian, so that's --
6 I know he's not a lawyer.
7 MR. MAYBANK: Yes.
8 MR. HUNTER: As a historian, let me try to --
9 THE COURT: I think he can answer it in the
10 context of his credentials.
11 MR. HUNTER: Yes.
12 THE COURT: We know it's not a legal
13 interpretation.
14 Q MR. HUNTER: In doing your work here, Doctor,
15 it's important for you to understand that there are
16 administrative functions and judicial functions.
17 A Yes.
18 Q And you've already told me that it's an important
19 difference. And my question here is: In your
20 understanding of judicial functions, would it include
21 the criminal jurisdiction functions of the conduct of
22 judicial interim release or bail hearings, the
23 confirmation or cancellation of police process, and
24 the issuance of search warrants and arrest warrants?
25 A Yes.
26 MR. HUNTER: Okay. Well, My Lord, I believe
27 Professor Green is in the courtroom. I'm not certain
0063
1 that it's appropriate for him to be here during the
2 cross-examination.
3 THE COURT: That's probably a fair comment. I
4 know this is exciting, Professor Green, but we'll ask
5 you to excuse yourself.
6 MR. HUNTER: Nothing personal, Professor.
7 MR. MAYBANK: It was kind of you to suggest that
8 he be here for your cross-examination.
9 MR. HUNTER: I had not said that. And if you
10 heard me say it, you misunderstood me.
11 MR. MAYBANK: You said that to me just before
12 the break.
13 MR. HUNTER: You misheard me.
14 THE COURT: Carry on, Mr. Hunter.
15 MR. HUNTER: Thank you.
16 Q And one of the reasons I asked you that question is,
17 do you understand that those are the functions of the
18 Applicants?
19 A I do.
20 Q Okay. In your substance of opinion which may not be
21 before the court, but I'll have it handed up.
22 Is that your substance of opinion statement?
23 A Yes, it is.
24 Q And would you turn to page 3?
25 A Yes.
26 Q And this was what concerned me. It's the third -- the
27 fourth sentence. "These were people..." It's about
0064
1 the first --
2 A Yes.
3 Q -- full paragraph:
4
5 "These were people in positions such as court
6 clerk and professionals such as psychologists in
7 provincial correctional institutions whose
8 authority was restricted to such administrative
9 duties as taking informations, issuing summonses
10 and warrants, and attending to judicial interim
11 release."
12
13 Did you mean to say "administrative" or did you mean
14 to say "judicial"?
15 A I guess what I was trying to do was to separate those
16 duties from the duties of sitting trials.
17 Q But we're clear that --
18 A Yes.
19 Q -- taking informations, issuing summonses and warrants
20 and attending to judicial interim release are judicial
21 functions.
22 A Yes.
23 Q Okay. That's where I needed to get some clarification
24 from you. Now --
25 THE COURT: Did you wish to mark this?
26 MR. HUNTER: Perhaps I should, My Lord.
27 Exhibit 4, if I may?
0065
1 THE COURT: Thank you.
2
3 *EXHIBIT 4 - SUBSTANCE OF OPINION
4 OF DR. MACLEOD
5
6 MR. HUNTER: Now, with respect to Exhibit 3
7 which you have just finished giving your direct
8 examination on, and this really deals with the matter
9 of the availability of statistics, and you have some
10 understanding about the statistics that are routinely
11 collected with respect to the work of justices of the
12 peace?
13 A Yes.
14 Q And I would assume, but you can perhaps tell me, that
15 for the work that the Applicants do, as we've
16 described and you've agreed are judicial functions, I
17 assume there are statistics available that would help
18 us about that?
19 A Yes, I would assume so.
20 Q And they would indicate the nature of the work, the
21 frequency of the work and things of that nature?
22 A Again I would assume so. I have not in fact seen
23 them.
24 Q You would expect that they exist, but you've not seen
25 them.
26 A Correct.
27 Q And you have not made any request to review them with
0066
1 regard to giving evidence here.
2 A That's correct.
3 MR. HUNTER: Now, on the matter of -- just
4 returning to this administrative and judicial, Madam
5 Clerk, would you place before the witness the
6 affidavit of John Michael Maguire which is dated the
7 13th of November, 1998, which has been filed with the
8 court.
9 November 13th, do you have that?
10 THE COURT: I have one that's sworn October 9.
11 MR. HUNTER: This, I think, is a supplementary.
12 THE COURT: No, I don't have it.
13 MR. HUNTER: I think my learned friend can help
14 me here, My Lord, with his copy, for which I am
15 grateful.
16 THE COURT: Thank you, Mr. Maybank.
17 Q MR. HUNTER: Now, sir, if you would turn up in
18 the affidavit of Mr. Maguire the letter of March 26th,
19 1998 from the Minister of Justice, which is part of
20 Exhibit 'B' to the affidavit. Do you see that?
21 A I do.
22 Q And have you seen this letter before?
23 A I don't believe I have.
24 Q You recognize it as a letter from the Minister of
25 Justice and Attorney General?
26 A Yes.
27 Q To the Chief Judge?
0067
1 A Yes.
2 Q With copies to ten other judges of the Provincial
3 Court?
4 A Right.
5 Q Have you any reason to doubt its authenticity?
6 A None whatsoever.
7 Q Okay. Now, you'll see that the Minister is dealing
8 with the Justice Statutes Amendment Act, 1998, which,
9 of course, is something that you were concerned with,
10 or at least aware of --
11 A Yes.
12 Q -- with respect to your report. And you will see in
13 the first paragraph, the second sentence:
14
15 "The purpose of the Justice Statutes Amendment
16 Act is simply to provide for the independence of
17 Provincial Court Judges, Masters and Justices of
18 the Peace in compliance with the common law and
19 the recent Wickman decision of the Supreme Court
20 of Canada."
21
22 Do you see that?
23 A I do.
24 Q Was that your understanding of the purpose of the
25 Justice Statutes Amendment Act when you embarked upon
26 and completed your work with respect to the evidence
27 that you've given here?
0068
1 A That...
2 Q That statement as to purpose?
3 A I believe so.
4 Q Okay. And then if you'd turn to page 2, you'll see in
5 the first paragraph:
6
7 "At the present time, Justices of the Peace
8 perform a number of functions some of which are
9 judicial and some of which are administrative."
10
11 And, of course, you agree with that. We've just been
12 through that, correct?
13 A Yes.
14 Q And then:
15
16 "The Justice Statutes Amendment Act establishes
17 two categories of Justices of the Peace who
18 perform judicial functions (sitting Justices of
19 the Peace...",
20
21 which seems to be the principal activity that concerns
22 Exhibit 3 --
23 A Yes --
24 Q -- would you agree?
25 A -- that's correct.
26 Q And the Applicants are not sitting justices of the
27 peace, are they?
0069
1 A No, they're not.
2 Q And I'll carry on:
3
4 "... and presiding Justices of the Peace) and one
5 category that performs administrative functions
6 (non-presiding Justices of the Peace)."
7
8 Do you see that?
9 A I do.
10 Q And is it your understanding of the matter that the --
11 if the Justice Statutes Amendment Act and the impugned
12 section are proclaimed, that the Applicants would no
13 longer perform their judicial function; is that your
14 understanding?
15 MR. MAYBANK: My Lord, I take the position that
16 Mr. Hunter is going beyond the scope of the report.
17 Dr. Macleod, as a historian, gave evidence on the
18 history and traditions of the office of justice of the
19 peace, and he provided no opinions or evidence in
20 relation to the Justice Statutes Amendment Act or the
21 impugned provision.
22 MR. HUNTER: My question arises out of the
23 witness's evident understanding of the various
24 categories of justice of the peace upon which he's
25 testified in direct, and I would assume that with that
26 knowledge, he would be able to answer these
27 questions. If he's not, that's fine.
0070
1 THE COURT: Well, I'll really merely caution
2 the witness that if you feel not capable of answering
3 the question, then just say so; but if you have formed
4 an opinion or have knowledge which permits you to
5 answer it, then you can.
6 A I think my answer would have to be that yes, indeed,
7 these -- the category of non-presiding justice --
8 perhaps you could repeat the question --
9 MR. HUNTER: Yes.
10 A -- so I can answer.
11 MR. HUNTER: I heard your answer, but I've
12 forgotten the question. Perhaps, Madam Court
13 Reporter, you can find that question, and we'll see if
14 it had any intelligibility to it.
15 THE COURT REPORTER: (by reading)
16
17 "Q And is it your understanding of the matter
18 that the -- if the Justice Statutes Amendment Act
19 and the impugned section are proclaimed, that the
20 Applicants would no longer perform their judicial
21 function; is that your understanding?"
22
23 A Yes, that is my understanding.
24 Q MR. HUNTER: Thank you. And then in the next
25 -- maybe I didn't finish that one. Just continuing
26 that first paragraph, if I didn't, just for the
27 record:
0071
1
2 "... and one category that performs
3 administrative functions (non-presiding Justices
4 of the Peace).
5
6 The next sentence, paragraph:
7
8 "Justices of the Peace who perform judicial
9 functions are provided with independence under
10 the new Act."
11
12 Do you see that?
13 A I do.
14 Q And then you'll see in this letter that the Minister
15 speaks of the powers of justices of the peace in the
16 third paragraph. Quote:
17
18 "As you are aware, there are many statutes and
19 regulations (both federal and provincial) which
20 currently confer powers on Justices of the
21 Peace."
22
23 A Yes.
24 Q
25 "The Act does not enlarge the jurisdiction of
26 Justices of the Peace. Justices of the Peace are
27 currently invested with extensive powers under
0072
1 federal and provincial legislation, including the
2 Criminal Code."
3
4 Would that be your understanding as well, based on
5 your review of the matter from your standpoint of a
6 historian?
7 A That...
8 Q What's in the first sentence and the second sentence,
9 that's true in your own study of the matter?
10 A I don't think I'm prepared to answer that one. I
11 haven't looked at the Act in sufficient detail to know
12 whether there has been any enlargement or not.
13 Q Okay. Let me then just parse it if I may. The first
14 sentence:
15
16 "As you are aware, there are many statutes and
17 regulations (both federal and provincial) which
18 currently confer powers on Justice of the Peace."
19
20 That accords with your own understanding of the
21 matter?
22 A Absolutely.
23 Q And then let's go to the third sentence:
24
25 "Justices of the Peace are currently invested
26 with extensive powers under federal and
27 provincial legislation, including the Criminal
0073
1 Code."
2
3 Does that also correspond with your own understanding?
4 A Yes.
5 Q Thank you. And on page 3, the Minister, in the fifth
6 full paragraph, states this:
7
8 "Another requirement of independence is security
9 of tenure so that the government cannot
10 arbitrarily remove a Judge."
11
12 Would you agree with that statement?
13 A Yes.
14 Q And are you aware of any effort or attempt to question
15 the competence or conduct of the Applicants by using
16 the mechanism of the Justice of the Peace Review
17 Council?
18 A Perhaps you could repeat that.
19 Q I'll try. Are you aware of any attempt -- let me make
20 it simpler -- to have the Applicants removed pursuant
21 to the removal provisions of the Justice of the Peace
22 Act?
23 A No.
24 Q In your review of matters did you inquire as to
25 whether that took place?
26 A No, I did not.
27 Q And are you aware of the Judicial Council's
0074
1 determination on qualifications that justices of the
2 peace going forward under the Justice Statutes
3 Amendment Act have to be lawyers with five years'
4 experience?
5 A I am.
6 Q And were you made aware of the information that the
7 Judicial Council considered in coming up with those
8 recommendations?
9 A No, I don't believe I am.
10 Q And do you have any knowledge that the Judicial
11 Council considered the particular position and effect
12 upon the Applicants of their recommendation?
13 A I have no knowledge of what the Judicial Council
14 considered in its deliberations.
15 Q And that would extend to no knowledge of the Judicial
16 Council considering the independence of the Applicants
17 with respect to the recommendations that ultimately
18 came forth from the Judicial Council on
19 qualifications? You have no information of that
20 either?
21 A I have no knowledge of that, no.
22 Q And just carrying on with the fifth paragraph of the
23 Minister's letter, in the second sentence:
24
25 "Judicial Councils are provided for Provincial
26 Court Judges, Justices of the Peace and Masters
27 so that complaints regarding the conduct of those
0075
1 persons are considered by an independent body."
2
3 Do you see that?
4 A I do.
5 Q And based on your own understanding of the matter,
6 that conforms with your own view?
7 A You mean as a statement of fact?
8 Q Yes. That's your understanding?
9 A Absolutely.
10 Q Yes, of course. And then finally in this paragraph:
11
12 "Sanctions against a Provincial Court Judge,
13 Justice of the Peace or Master are only possible
14 following the Judicial Council process, including
15 a judicial inquiry."
16
17 Do you see that?
18 A Yes.
19 Q Do you take any exception to that statement, based on
20 your own understanding?
21 A None whatsoever.
22 Q Thank you. Those are all matters respecting security
23 of tenure, correct?
24 A Yes.
25 Q And then in the second last paragraph, it is stated:
26
27 "Let me assure you that our sole intention in
0076
1 passing this Bill was to protect the Provincial
2 Court, including Justices of the Peace from any
3 attack on their ability to hear matters."
4
5 Do you see that?
6 A I do.
7 Q Is this the first time you've been made aware of that
8 assurance?
9 MR. MAYBANK: Well, My Lord, the witness has
10 stated that he hasn't read the letter.
11 THE COURT: He's being asked, though, whether
12 he learned that from any other source I take it.
13 A The --
14 MR. HUNTER: That's correct.
15 A Whether I learned that -- what the intentions of the
16 government were?
17 Q Whether you were made aware of the assurance that I
18 read in that sentence, and I'll read it again.
19
20 "Let me assure you that our sole intention in
21 passing this Bill was to protect the Provincial
22 Court, including Justices of the Peace from any
23 attack on their ability to hear matters."
24
25 Have you ever been made aware of that sentiment before
26 reading it here?
27 A Not to my knowledge.
0077
1 Q Is that inconsistent with any information that you may
2 have reviewed?
3 A I don't believe it is.
4 Q Okay. Now, you used the expression in your testimony
5 in direct, "minor cases".
6 A Yes.
7 Q I assume you would agree with me that where you stand
8 is where you sit, and that an accused person facing a
9 charge might well regard a matter that you would
10 characterize as minor as major.
11 A Well, that's obviously a very subjective way of
12 looking at it. I think it's standard practice to
13 refer to offences which have minor penalties in terms
14 of short terms of imprisonment or fines as minor
15 cases, and offences that carry years, or perhaps life
16 imprisonment, as major.
17 Q Okay. How about something as simple as being deprived
18 of your liberty by way of arrest; is that a minor
19 matter?
20 A I don't think it's a minor matter for the person
21 involved.
22 Q Exactly. And the matter of your domicile and someone
23 coming into it and -- without your consent; is that a
24 minor matter?
25 A No, it's not a minor matter at all. It's one of the
26 more fundamental.
27 Q And the matter of incarceration and bail; is that a
0078
1 minor matter?
2 A Once again, certainly not for the individual involved.
3 Q Yes. And as a historian, those are basic rights in
4 this country.
5 A They are.
6 Q Right. Now, in your report, if you still have it
7 before you, Exhibit 2?
8 A Yes.
9 Q At page 4, in --
10 A Yes, I have it. Page 4?
11 Q On page 4 of your report, Exhibit 2.
12 A Umm-hmm.
13 Q In the third line, you say:
14
15 "Obviously there was little room among these
16 multiple roles for the modern concept of judicial
17 independence."
18
19 Do you see that?
20 A I do.
21 Q And then just turn to page 12, where you express it
22 somewhat differently, but perhaps not substantively.
23 A Umm-hmm.
24 Q The last line on page 12, you say:
25
26 "Appointing police as justices of the peace with
27 the power to preside over trials is obviously
0079
1 deeply offensive to modern notions of the
2 independence of the judiciary..."
3
4 Do you see that?
5 A I do.
6 Q Should the court have in mind that when you use those
7 expressions, "modern notions of the independence of
8 the judiciary" and "modern concept of judicial
9 independence," that you include the jurisprudence
10 respecting the Charter, and particularly with respect
11 to independence of the judiciary?
12 A Yes.
13 Q So I can understand that when you say "modern notions"
14 and "modern concept," you're speaking of today.
15 A I am. I'm speaking of certainly the period since the
16 introduction of the Charter.
17 Q Now, in this matter, Dr. Macleod, and you may want to
18 turn up, while you've got Exhibit 2 there, page 19,
19 and I want to just take you through that part which is
20 entitled Appendix.
21 A Yes.
22 Q And as I read it, and you can confirm, you were asked
23 to deal with a number of aspects of the history of the
24 office of justice of the peace, including the history,
25 practice -- and practice, traditions and jurisdiction
26 of the office of justice of the peace as they relate
27 to the legal issue of independence, correct?
0080
1 A Correct.
2 Q And you were to express an opinion on the following
3 question:
4
5 "Was there a tradition or practice in the (old)
6 NWT prior to 1905 and in Alberta since 1905..."
7
8 and I'll say to the present day,
9
10 "... that justices of the peace enjoyed security
11 of tenure or financial security?"
12
13 A Yes.
14 Q All right. And Exhibit 2 contains your response to
15 that assignment, correct?
16 A Correct.
17 Q Now, is it fair for the court to conclude that this
18 historical review in the context of the assignment
19 included a consideration of the Constitution of
20 Canada?
21 A Yes.
22 Q And particularly the Charter?
23 A Yes.
24 Q And more particularly, Section 7 and Section 11(d)?
25 A Yes.
26 Q Would you agree with me -- or at least could you help
27 me, where is that set out in your report, that
0081
1 consideration? I didn't see it.
2 A Perhaps not explicitly.
3 Q Well, is it "perhaps"? I couldn't find it.
4 A Okay, in that case I would say not -- not explicitly.
5 Q And equally, did your historical review include the
6 jurisprudence respecting independence and
7 impartiality; that is to say, the legal issue of
8 independence?
9 A Some of it.
10 Q But there's no reference to any of that jurisprudence
11 in your report.
12 A That's true.
13 Q Is there a reason for that?
14 A I'm not sure whether there's a reason or not, beyond
15 saying that perhaps as a historian, I tended to
16 concentrate more on the practice than on the legal
17 issues.
18 Q Well, as a historian, Doctor, do not the
19 constitutional pronouncements of the Supreme Court of
20 Canada constitute appropriate history?
21 A Absolutely.
22 Q All right. And I understand that you reviewed the
23 Irving Report?
24 A Yes.
25 Q This is in connection with this report, Exhibit 2?
26 A Yes.
27 Q The Patton Report?
0082
1 A Yes.
2 Q And the Klinck Report?
3 A Yes.
4 Q Did you review any other such reports or studies
5 dealing with the matters that those reports dealt
6 with, since the Klinck Report and up to the present
7 time?
8 A No.
9 Q Did you inquire as to whether there were any other
10 such reports that, for instance, addressed the same
11 issues as the Klinck Report did, but with this
12 exception, and that is the decision in Wickman or
13 Campbell or the Provincial Court Judges' case?
14 A No, I did not.
15 Q And you would agree with me that the Klinck Report was
16 a very complete analysis of Valente and Beauregard?
17 A I believe so.
18 Q And dealt expressly with justices of the peace?
19 A Yes.
20 Q And indicated a number of problems that needed to be
21 cured by amendments.
22 A Yes.
23 Q And those recommendations, for the most part, found
24 their way into the statute in 1991.
25 A Yes, they did.
26 Q To overcome the perceived difficulties arising out of
27 the jurisprudence with respect to the office.
0083
1 A That's correct.
2 Q And do I have this right, sir, that being aware of
3 that, you did not inquire of those retaining you as to
4 whether a similar analysis had been done with respect
5 to the Provincial Court Judges' case and in the
6 context of the Justice Statutes Amendment Act?
7 A That's correct.
8 Q You didn't inquire about that.
9 A I didn't.
10 Q And no one offered that to you, correct?
11 A Correct.
12 Q Now, you would agree with me, I trust, that the terms
13 of your research certainly enabled you to pursue those
14 matters.
15 A Yes.
16 Q And I take that from page 20 of Exhibit 2, Terms of
17 Research:
18
19 "This report has been undertaken according to
20 terms agreed upon by the Alberta Department of
21 Justice and the researcher. Both parties have
22 insisted that research for this report be
23 conducted in an independent manner.
24
25 Although the Department of Justice has described
26 in general terms the topics to be addressed by
27 the research as noted above, it has requested
0084
1 that the historical assessment be conducted in as
2 objective and independent a manner as possible.
3 Within this general framework the questions to be
4 pursued are to be set independently by the
5 researcher; the researcher is free to draw
6 conclusions consistent with the historical
7 evidence."
8
9 And that was the arrangement.
10 A That was the arrangement.
11 Q Did it not occur to you -- well, first of all, when
12 you were doing this work, were you not aware of the
13 Provincial Court Judges' case?
14 A Yes, I was.
15 Q And you had studied it?
16 A I had looked at it, yes.
17 Q Simply looked at it or studied it?
18 A I -- I will say that I did not study it at great
19 length. In these cases, time is always a factor, and
20 you have to make choices about where you're going to
21 spend your time. Being a historian and one whose
22 expertise is mainly in the earlier part, I chose to
23 devote most of my time to that area.
24 Q Well, sir, you virtually ignored the reasons for
25 judgment in the Provincial Court Judges' case, did you
26 not?
27 A Well, I'm not sure I would agree with that.
0085
1 Q Well, did you have a clear understanding of what was
2 said in that court about independence of justice, the
3 core characteristics --
4 A Yes.
5 Q -- the two dimensions, the purpose of these -- of
6 independence?
7 A I believe so.
8 Q And just on one other point, while you were doing your
9 work here that culminated in the report, you were
10 aware that the issue, at least for the court, was the
11 perception of lack of independence and impartiality?
12 A Yes.
13 Q And you were aware that the perception and the
14 standard of that was that in the eye of the reasonable
15 and informed person, after reviewing the matter
16 realistically and practically or having thought the
17 matter through, would reasonably be seen to appear to
18 be a compromise of these constitutional rights.
19 A Yes.
20 Q You're aware of that. And you were aware that two of
21 the three core characteristics, security of tenure and
22 financial security, were the two matters that you were
23 to expressly address.
24 A Correct.
25 Q And you were aware that the court had spoken at length
26 on that in the -- let me call it the Campbell case.
27 A Yes.
0086
1 Q That's one way we've been calling it, correct?
2 A Correct.
3 Q And had quite a bit to say about that.
4 A Yes.
5 Q And also the court stated that there were two
6 dimensions of judicial independence: one, the
7 individual independence; and two, the institution or
8 collective independence.
9 A Yes.
10 Q And the Chief Justice, speaking for himself and five
11 others, had quite a bit to say about that.
12 A Yes.
13 Q And in fact, you were aware that the court was
14 unanimous in dealing with the Section 11(d) Charter
15 analysis.
16 A Right.
17 Q And you were aware that the purpose of the
18 institutional or collective dimension of financial
19 security was to protect an organ of the Constitution
20 which in turn is charged with the responsibility of
21 protecting that document and the fundamental values
22 contained in it.
23 A Yes.
24 Q And the need to avoid the possibly or the appearance
25 of political interference through economic
26 manipulation was to ensure public confidence in the
27 administration of justice.
0087
1 A Yes.
2 Q So having known all that, why wouldn't you have at
3 least included it in your report?
4 A Well, it referred specifically to Provincial Court
5 judges and not to justices of the peace.
6 Q So did you come to some belief after reading it that
7 it had no application to the judicial work done by the
8 Applicants?
9 A That I think is a legal question that's beyond my
10 competence.
11 Q Well, you appear to have distinguished the cases not
12 dealing with justices of the peace, and I'm wondering
13 how you came to that conclusion.
14 A Because I believe it was in that judgment that the
15 court specifically said that a different -- that this
16 judgment did not apply to justices of the peace, and
17 in fact a different standard was to be -- a lesser
18 standard of independence was to be applied.
19 Q So you have a clear memory that that's what was said?
20 A That's my memory.
21 Q And that was the reason it didn't have any prominence
22 in your analysis?
23 A I would think so.
24 Q Thank you. And you were present in court yesterday?
25 A I was.
26 Q And you may have heard reference to the Justice of the
27 Peace Manual?
0088
1 A I have.
2 Q And is that something you're familiar with?
3 A I've looked at it, yes.
4 Q And did you look at it in connection with the
5 preparation of this report?
6 A I did.
7 Q You made no reference to it?
8 A No.
9 Q Can you explain why?
10 A Once again, I guess it would be a question of the time
11 available to me.
12 Q I see. Am I to understand and is the court to
13 understand that you only had so much time that you
14 could spend on this?
15 A Absolutely.
16 Q Ah. But you don't qualify your report on the basis of
17 not having enough time.
18 A No.
19 Q And are you aware of the Judicial Selection Process
20 Review Committee and its statement about justices of
21 the peace being judicial officers?
22 A I think you'd have to refresh my memory --
23 Q I will.
24 A -- about that, sir.
25 Q This is a report in the end of April of this year,
26 which I think is in the materials.
27 Tab 14 of Volume 2 of our authorities. Let me
0089
1 just -- Madam Clerk can just hand this up to you.
2 It's a very brief statement on page 14, but you may
3 recognize the document. Or maybe you won't.
4 A Yes.
5 Q You've seen that before?
6 A Yes, I have.
7 Q And am I right it was in the spring of 1998?
8 A That this report --
9 Q Yes.
10 A Yes, I believe so.
11 Q And did you have that in mind when you undertook this
12 work resulting in your report and evidence here?
13 A Certainly it was part of the materials that I
14 considered, yes.
15 Q So if we want to talk about modern views, that's
16 pretty current, isn't it?
17 A Just about as current as you can get.
18 Q And who are the participants in that? You can tell, I
19 think, from the signature page.
20 A Would you like me to read them?
21 Q Yeah, just identify them if you would.
22 A Certainly. Marlene Graham.
23 Q MLA?
24 A MLA. Gordon Flynn, Q.C.
25 Q President of the Law Society?
26 A Jeffrey McCaig.
27 Q Member of the Judicial Council?
0090
1 A Chief Judge Edward Wachowich.
2 Q Provincial Court of Alberta?
3 A Yes. Shirley Keith.
4 Q And who is Ms. Keith?
5 A I'm not sure who Ms. Keith is, nor am I sure who
6 Michael Procter, the final member is.
7 Q All right. And you were aware of the statement that
8 justices of the peace are judicial officers, page 14?
9 A That's page 14?
10 Q Yes.
11 A Yes.
12 Q Okay.
13 MS. ENNS: Perhaps Mr. Hunter could clarify.
14 I think "are also judicial officers" is the accurate
15 statement.
16 A Yes.
17 MR. HUNTER: Yes, well, of course. As I am
18 sure there are other judicial officers besides the
19 Applicants.
20 MS. ENNS: Well, perhaps they are also
21 administrative officers.
22 MR. HUNTER: Well, that's another case, not
23 this one.
24 Q Now, you've expressed an opinion here, some might call
25 it a legal opinion, that since 1991, justices of the
26 peace enjoyed, quote, "limited security of tenure,"
27 and that proceeds upon, some might say, a legal
0091
1 interpretation of the effect of taking the words "at
2 pleasure" out of the 1908 statute and based upon what
3 the Interpretation Act says.
4 A In part.
5 Q Well, let's just deal with that part. You say from
6 your point of view that no meaning whatsoever should
7 be attributed to the removal of those words from the
8 1908 statute.
9 A Correct.
10 Q You would agree that others might have a different
11 opinion?
12 A Certainly.
13 Q And with respect to the matter of security of tenure
14 and in doing your work, you were aware that if indeed
15 there was any basis to invoke the Justice of the Peace
16 Review Council with respect to these applicants, that
17 could have been undertaken to remove them?
18 A You'll have to -- you'll have to ask me that one
19 again, I'm sorry.
20 Q I will. I won't, but the court reporter will.
21 THE COURT REPORTER: (by reading)
22
23 "Q And with respect to the matter of security of
24 tenure and in doing your work, you were aware
25 that if indeed there was any basis to invoke the
26 Justice of the Peace Review Council with respect
27 to these applicants, that could have been
0092
1 undertaken to remove them?"
2
3 A So the question is that was I aware of whether or not
4 there were any proceedings of the Justice of the Peace
5 Review Council involving these Applicants?
6 Q MR. HUNTER: Let me try it -- the question
7 probably got too much in it. But when you were doing
8 your work --
9 A Yes.
10 Q -- you knew that there was one way of removing the
11 Applicants.
12 A That's correct.
13 Q And that was a Judicial Council.
14 A Yes.
15 Q And you knew it hadn't been undertaken?
16 A I knew that.
17 Q Or even considered.
18 A Yes. Well, I don't know about considered. I mean I
19 would have no knowledge of that.
20 Q Right.
21 THE COURT: Mr. Hunter --
22 MR. HUNTER: I think I'm about done.
23 THE COURT: Okay, because I'm content to
24 adjourn until two and come back for a bit. I think
25 I've plateaued. I think I can hang on.
26 MR. HUNTER: Well, My Lord, if I can just have
27 two minutes --
0093
1 THE COURT: Okay.
2 MR. HUNTER: I think I may not have to have you
3 do that.
4 THE COURT: All right.
5 Q MR. HUNTER: There's always one more question,
6 and this is it: Your paper on -- which is Exhibit 3,
7 deals with sitting JPs.
8 A That's correct.
9 Q And you can confirm to this court that a sitting JP,
10 to your understanding of the matter, does not exercise
11 the following criminal jurisdiction functions: the
12 conduct of judicial interim release, bail hearings,
13 the confirmation or cancellation of police process,
14 and the issuance of search warrants and arrest
15 warrants, correct?
16 A Correct.
17 Q Thank you. Thank you very much, Doctor.
18 MR. HUNTER: That completes my
19 cross-examination, My Lord.
20 THE COURT: Thank you, Mr. Hunter.
21 Mr. Maybank, anything arising?
22 MR. MAYBANK: Nothing arising, sir.
23 THE COURT: Might the witness be excused?
24 MR. HUNTER: Indeed.
25 THE COURT: Thank you, Dr. Macleod, for your
26 assistance.
27 (WITNESS STANDS DOWN)
0094
1 MR. HUNTER: My Lord, what's your wish with
2 regard to continuance?
3 THE COURT: What's the best estimate for
4 Professor Green?
5 MR. MAYBANK: Sir, I would think I would be at
6 least as long with Professor Green as Professor
7 Macleod in examination-in-chief.
8 THE COURT: Well, I think we will try to
9 soldier on.
10 MR. HUNTER: All right, sir.
11 THE COURT: There's nothing that two or three
12 Tylenol can't fix.
13 MR. HUNTER: Well, it's what they may create
14 rather than cure.
15 THE COURT: If I nod off, you'll notice. So
16 we will adjourn until two o'clock. I am concerned
17 that we don't have time to finish on Friday, and I --
18 it's important, given the time frame we're working
19 with, to try and finish on Friday, so we'll adjourn
20 until two o'clock.
21 MR. HUNTER: Thank you.
22 MR. MAYBANK: Is there any opportunity, sir, for
23 inquiring into any further time if it did become
24 necessary?
25 THE COURT: Yes. It would mean bumping some
26 other matters, but once a matter starts, we stay with
27 it until it is finished.
0095
1 MR. MAYBANK: All right.
2 THE COURT: That's not to give you an
3 open-ended opportunity.
4 MR. MAYBANK: I do have an appointment with the
5 Supreme Court of Canada next week, on the Wednesday.
6 THE COURT: Those are fairly compelling. All
7 right, two o'clock.
8 --------------------------------------------------------
9 PROCEEDINGS ADJOURNED TO 2:00 P.M.
10 --------------------------------------------------------
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