0096
1 12th January, 1999
2 2:00 P.M. Session
3 L. D. Stevenson, CSR(A) Official Court Reporter
4 ---------------------------------------------------------------
5 THE COURT: Good afternoon.
6 Mr. Maybank?
7 MR. MAYBANK: My Lord, it would be my intention
8 to call Dr. Ian Greene to the stand as the second
9 witness. I'll be intending to qualify Dr. Greene as an
10 expert in the political science study of law with an
11 emphasis on judicial independence and the
12 administration of courts and related officials.
13 THE COURT: The political science study ...
14 MR. MAYBANK: Study of law.
15 THE COURT: I didn't know there was a political
16 science study of law. All right.
17 CHARLES IAN GEORGE GREENE, sworn, examined by Mr. Maybank:
18 Q Dr. Greene, the Clerk is providing to you a copy of
19 what's entitled an abbreviated curriculum vitae, is
20 that a curriculum vitae that you have prepared in
21 relation to yourself?
22 A Yes, it is.
23 MR. MAYBANK: May I have that marked as an
24 exhibit, please?
25 MR. HUNTER: No objection.
26 THE COURT: Exhibit 5?
27 THE COURT CLERK: That is correct, My Lord.
0097
1 EXHIBIT 5 - ABBREVIATED CURRICULUM
2 VITAE OF CHARLES IAN GEORGE GREENE
3 Q MR. MAYBANK: Dr. Greene, can you provide us with
4 your current residence and your current employment
5 position?
6 A My current residence is Toronto, and I'm Associate Dean
7 of Arts and Associate Professor of Political Science at
8 York University.
9 Q And in order to attain that position as professor, you
10 obtained a bachelor of arts with a -- in honours with a
11 major in political science at the University of
12 Alberta?
13 A That's correct.
14 Q And you obtained a master of arts from the University
15 of Toronto in 1972?
16 A That's correct.
17 Q Did any of the courses you took in your masters touch
18 on judicial independence?
19 A Yes, I took a course called courts and constitution and
20 that taught by Professor Peter Russell.
21 Q And while you attended at the University of Toronto,
22 did you hold any research positions?
23 A Yes, I was a research assistant to Professor Peter
24 Russell.
25 Q On what type of issues?
26 A He was studying issues in courts administration at the
27 time.
0098
1 Q And then in relation to your masters, you prepared a
2 thesis, The Politics of Judicial Administration; The
3 Ontario case?
4 A That's right.
5 Q And you obtained your Ph.D. from the Department of
6 Political Science at the University of Toronto in 1983?
7 A That's correct.
8 Q And is this thesis related in any way to the report
9 that you've prepared for court?
10 A Yes, it is. The problem that I was addressing in my
11 thesis was why the Ontario Government had been unable
12 to reform courts administration in Ontario in spite of
13 a number of reports that had recommended reforms and a
14 number of attempts went as far as draft legislation.
15 So, the purpose of my thesis was to explain why it was
16 so difficult to reform courts administration and part
17 of the issue dealt with justices of the peace.
18 Q I see. Was it related at all to judicial independence?
19 A Absolutely, yes. The convention and wisdom at the time
20 was that one of the reasons that the Ontario Government
21 couldn't act was because they hadn't found a way of
22 reconciling judicial independence with ministerial
23 responsibility.
24 Q And in terms of professional experience, you currently
25 hold two positions at the York University. You're an
26 associate professor at the Department of Political
27 Science, and you're also Associate Dean of the Faculty
0099
1 of Arts?
2 A That's correct.
3 Q And since 1985, you've been employed as a professor
4 with the Department of Political Science for York
5 University, first as a sessional instructor, then as an
6 assistant professor, and then as an associate
7 professor?
8 A That's correct.
9 Q Do any of the courses that you currently teach or have
10 taught address the subject of judicial independence?
11 A Yes, I've taught a third-year course called Canadian
12 Public Law most of the time since 1985, and it deals
13 with issues in administrative law, constitutional law
14 and human rights, and we certainly spend a fair amount
15 of time talking about judicial independence and the
16 court decisions relating to it and the implications of
17 judicial independence for public law.
18 Q And you also taught -- have taught a course since 1986
19 called Politics and Judicial Process?
20 A Yes, that's a fourth year graduate course I'm teaching
21 right now as a graduate only course, and it deals with
22 the increasing literature about the -- in the political
23 science study of law in the courts in Canada and some
24 of the current issues and, of course, one of the
25 important current issues is the meaning of judicial
26 independence.
27 Q And you have taught a course in the Master of Laws
0100
1 Programme at the Osgoode Law School called Theoretical
2 Issues and Administrative Law?
3 A That's right.
4 Q And was it related at all to your report?
5 A Yes, because the issue of judicial independence and the
6 controversy surrounding it are quite important in terms
7 of looking at the theoretical issues in administrative
8 law.
9 Q And from 1981 to 1985, you were a sessional lecture at
10 the University of Lethbridge in the Department of
11 Political Science?
12 A That's correct.
13 Q Did any of the courses you taught deal with the topic
14 of justice or administration of justice?
15 A Yes, I taught a course called the Administration of
16 Justice several times, and one of the issues we dealt
17 with was judicial independence.
18 Q And while you were at the University of Lethbridge, you
19 were engaged in some research that is related to
20 today's conflict?
21 A Yes, I applied for a grant from the Alberta Law
22 Foundation along with Professor Peter McCormick, a
23 grant which we received, and it enabled us to study
24 issues in court administration in -- in Alberta and, of
25 course, judicial independence was one of the issues we
26 looked at.
27 Q Okay, and in relation to that, you conducted interviews
0101
1 with the Alberta judiciary?
2 A Yes, there were about ninety interviews conducted
3 altogether. In the end, I left for my position at York
4 University, and I just did two of the interviews.
5 Professor Peter McCormick conducted the rest.
6 Q Now, you have a number of publications. One is a book
7 entitled Final Appeal: Appellate decision-making in
8 Canada. What was your contribution to the book, and
9 how was it related to the issues you've discussed in
10 your report?
11 A Well, the genesis of this book was a speech that I
12 heard by Madam Justice Wilson in 1986 where she
13 suggested that academics should do more research into
14 the decision making process in appeal courts, so after
15 that I applied for some research grants, and I invited
16 several other academics to join me. And in the end, we
17 interviewed 101 of candidates of approximately 125
18 appeal court judges, and one of the issues we looked
19 at -- one of the many issues was issues related to
20 judicial independence.
21 Q And another book named as Honest Politics: Ethics and
22 Politics in Canada. What was your contribution to that
23 book?
24 A I was the author of about two-thirds of that book, and
25 I wrote the chapters that dealt with conflict of
26 interest.
27 Q And the book Judges and Judging: Inside the Canadian
0102
1 Judicial System, what was your contribution?
2 A That was a book that came out of the research described
3 earlier at the University of Lethbridge that I did with
4 Professor McCormick, combined with some of the results
5 from my own thesis research that I had used for my
6 thesis, and I think there were about ten chapters in
7 the book, and I think I did the first draft of four
8 of the chapters, and Professor McCormick wrote the
9 other -- the first draft of the other six, and then we
10 edited each other's work.
11 Q And you were the author of a book entitled The Charter
12 of Rights?
13 A That's right.
14 Q And the title might be self-explanatory, but can you
15 describe briefly how it related to the preparation of
16 your report?
17 A Yes, I produced that book basically out of my lecture
18 notes for the part of my public law course that dealt
19 with human rights, so it dealt with the history, first
20 of all, of human rights legislation in Canada and
21 judicial interpretation of it; and then I analyzed the
22 main Charter of Rights cases right up until 1989 when
23 the book was published, and this is a book for
24 political scientists who -- who are hoping to become
25 public administrators, so it was written from that
26 perspective.
27 Q And are any of the articles listed on your curriculum
0103
1 vitae that you've authored, do they deal with the issue
2 of judicial independence?
3 A The main one is the article that I wrote for the
4 Osgoode Hall Law Journal on the -- the doctrine of
5 judicial independence developed by the Supreme Court of
6 Canada, and that dealt with the Valente and Beauregard
7 decisions of the Supreme court.
8 Q Was that the article that was cited by the Supreme
9 Court of Canada in Regina and Lippe?
10 A That's correct.
11 Q Have you been asked to provide expert evidence in any
12 other lawsuits?
13 A Yes, there were two lawsuits that I provided expert
14 evidence in in Ontario. One was in 1991. Actually I
15 wrote three or four affidavits, I think, between 1991
16 and 1993. This is -- was a case called Ahmed,
17 A-H-M-E-D, versus The Queen, and it dealt with the --
18 the question of a bias in the Federal Court of Appeal.
19 Q And the other -- other case much more recent is one
20 that was recently heard in the Ontario Court - General
21 Division dealing with the issue of justices of the
22 peace, their financial security and the judicial
23 compensation commission process?
24 A That's correct.
25 Q And was your affidavit as an expert in that case
26 accepted by --
27 A It was, yes.
0104
1 Q -- the Board?
2 And, My Lord, I make application to have you
3 accept Dr. Greene as an expert in the political science
4 study of law with an emphasis on judicial independence
5 and the administration of courts and related officials.
6 THE COURT: Mr. Hunter, any questions?
7 MR. HUNTER: No questions.
8 THE COURT: Dr. Greene will be recognized as an
9 expert for the purpose of giving opinion evidence on
10 the subject of the political science study of law with
11 emphasis on judicial independence and administration of
12 courts and related officials.
13 Q MR. MAYBANK: Dr. Greene, the Clerk is showing
14 you a document entitled Reforms to the Office of the
15 Justice of the Peace in Ontario and Elsewhere and The
16 Public Interest dated November 30th, 1998. Is that a
17 report that you prepared for the purpose of these
18 proceedings?
19 A It is.
20 Q MR. MAYBANK: My Lord, may I have that marked as
21 an exhibit, please?
22 THE COURT: No objection?
23 MR. HUNTER: No objection.
24 THE COURT: Exhibit 6.
25 THE COURT CLERK: That's correct, My Lord.
26 EXHIBIT 6 - DOCUMENT ENTITLED
27 REFORMS TO THE OFFICE OF THE
0105
1 JUSTICE OF THE PEACE IN ONTARIO AND
2 ELSEWHERE AND THE PUBLIC INTEREST
3 DATED NOVEMBER 30TH, 1998
4 Q MR. MAYBANK: Would you, please, outline the
5 purpose of the report?
6 A The -- yes, the purpose of the report is to do an
7 overview of the major studies that relate to justices
8 of the peace in Ontario since 1967 and the changes that
9 have occurred to the justice of the peace system in
10 Ontario since 1967. So that's the primary purpose, and
11 secondary purpose was to look at -- at similar changes
12 in Saskatchewan and Alberta.
13 Q And there was a report from Manitoba as well that you
14 reviewed?
15 A In addition, there was a report done in Manitoba by the
16 Law Reform Commission.
17 Q And the first section of your report under No. 1,
18 Ontario, could you review that, please?
19 A Well, in Ontario, during the past 30 years, there have
20 been a number of developments in judicial
21 administration that affect justices of the peace, so
22 the purpose of the first section of my report was to
23 review the reports that led to the changes, and I
24 started with the McRuer Report which was written in
25 1968, and then I looked at the Ontario Law Reform
26 Commission Report of 1973, the Mewett Report of 1981.
27 Now, these were the main reports that were done for the
0106
1 Government that had impact on the reform of the JP
2 system.
3 In addition, I looked at the report that was
4 prepared by Anthony Doob at the Centre of Criminology
5 at the University of Toronto. It was an academic
6 report and two reports that were done for the Ontario
7 Government that dealt mainly with remuneration of
8 justices of the peace. There was the Sibson Report of
9 1988 and the Justice of the Peace Remuneration
10 Commission Report of 1995.
11 Q And you note, in the second paragraph of that first
12 section under No. 1,
13
14 "There are several reasons for the attention paid
15 to the office of justice of the peace."
16
17 What were those?
18 A Yes, the -- there had been, first of all, increasing
19 concern about human rights and, of course, that led to
20 the commissioning of the McRuer Commission Report.
21 Now, Chief Justice McRuer had been the chief justice of
22 the High Court from 1945 to 1964. He was very well
23 respected. He considered that having an excellent and
24 respected judicial system was one of the cornerstones
25 of protecting human rights in Ontario. So, the general
26 concern about human rights and the McRuer Report
27 itself, especially what it said about justices of the
0107
1 peace, had a major impact not only in Ontario but
2 elsewhere. In fact, the McRuer Report led to the
3 creation of the Provincial Court in Ontario and the
4 other provinces followed suit within a few years.
5 There were some major reforms to other parts of the
6 system, so the McRuer Report was just -- it had an
7 enormous impact right across the country, but
8 especially in Ontario, but it was one of the reasons
9 for the concern about justices of the peace.
10 Q And you mention some later developments --
11 A That's right. There was the -- first, the Law Reform
12 Commission Report which was the most extensive report
13 about judicial administration that had been done any
14 place in the Commonwealth which had a lot to say about
15 justices of the peace, created more concern, and then
16 there was the Charter of Rights and Freedoms in 1982
17 and the major -- the three major decisions after that
18 that I think are Valente, Beauregard and the Provincial
19 Court judges case, that also all of which have created
20 concerns about judicial independence and also the
21 independence of justices of the peace.
22 Q And are you familiar with a number of those decisions,
23 those Supreme Court of Canada decisions?
24 A Yes, I am. I'm quite familiar with Valente and
25 Beauregard, and I've tried to keep up with all the
26 decisions that have come out since my book in 1989 on
27 the Charter of Rights, including the Provincial Court
0108
1 judges case.
2 Q And were you aware of those at the time you prepared
3 your report?
4 A Oh, absolutely, yes.
5 Q All right. In the next section on the McRuer Report, I
6 guess at pages 1 and 2, you -- you describe it. Could
7 you briefly review that section?
8 A Yes. Well, McRuer was very critical of the system of
9 justices of the peace in Ontario at the time. First of
10 all, there were nine hundred and some odd justices of
11 the peace. Most of them were simply political
12 patronage appointments, and he found this quite
13 shocking. He said that there was little attention paid
14 to appropriate training or qualifications for the
15 justices of the peace. He was very concerned about the
16 fee JP system which he thought encouraged the police to
17 shop around for justices of the peace who were liable
18 to be sympathetic from them -- for them and that more
19 business would go to the JPs who were going to sign
20 warrants and so on without too much thought. So, he
21 said that in many cases -- in most cases the JP system
22 in Ontario was little more than a sham. He recommended
23 that the appointment of all present justices of the
24 peace in Ontario should be cancelled. Those qualified
25 for the office should be reappointed. Qualification
26 should be the only criterion for appointment.
27 Q I note that in the later Mewitt Report that Professor
0109
1 Mewitt summarizes the McRuer Report. Could I ask you
2 to refer to Volume III of the book of the authorities
3 of the respondent, Tab 38? At, I guess, page 6, there
4 is a list of the recommendations from the McRuer
5 Report.
6 A Yes.
7 Q Could you read Recommendations 3 and 4, please?
8 A Recommendation 3,
9
10 "All present appointments be cancelled,
11 individuals reviewed and only those qualified be
12 reappointed;"
13
14 Recommendation 4,
15
16 "Qualifications should be the sole criterion for
17 appointment;"
18
19 Q Now, if we flip back to page 5 where Professor Mewitt
20 is describing quite concisely the McRuer Report, the
21 third full paragraph under the heading Prior
22 Inquiries.
23 A Yes.
24 Q The last sentence of that paragraph reads, in his
25 description of what McRuer was recommending or thought
26 from his report,
27
0110
1 "All Justices of the Peace should be treated as
2 judicial officers in respect to security and
3 tenure."
4
5 Do you see any inconsistency on the one hand between
6 Justice McRuer who states he -- or, Mewitt's
7 interpretation that McRuer is suggesting that all
8 justices of the peace should be treated as judicial
9 officers in respect of security and tenure; and yet,
10 when he recommends the reforms to the office,
11 recommends that all present appointments be cancelled
12 and individuals reviewed and only those qualified be
13 reappointed?
14 A No, I don't see an inconsistency there in -- what
15 McRuer was working towards was a much better system of
16 justices of the peace, and he was very, very concerned
17 about anything - if you look at all three volumes of
18 the report - anything that hinted of biasing judicial
19 officers. So, he felt that we needed a much better
20 system of justices of the peace in Ontario and the best
21 way of getting there was to start -- the words he used
22 was "a fresh start." Cancel all existing appointments
23 and start anew, and then treat the justices of the
24 peace as judicial officers in respect to security and
25 tenure.
26 Q Moving back to your report, on pages 3 and 4, you
27 describe the Ontario Law Reform Commission Report of
0111
1 1973.
2 A Yes.
3 Q Would you summarize your review?
4 A Yes, well, the Law Reform Commission Report was -- was
5 quite concerned about how the courts in Ontario could
6 be better managed, when there was a lot of emphasis in
7 the academic literature at the time on good
8 professional management practices in the public sector,
9 and they considered, well, how can you do this and
10 still respect judicial independence?
11 When they looked at justices of the peace, they
12 noted that the major recommendations of McRuer had not
13 been implemented, that -- that the system of fee JPs
14 was still in place. Not only that, the JP appointments
15 had not been cancelled. There were even more JPs than
16 there were before. The number had risen to just over a
17 thousand, and the Law Reform Commission said it
18 recognized the understandable reluctance on the part of
19 any Government to revoke appointments once made, and so
20 it recommended a legislative change that would allow
21 only salaried JPs to exercise any powers. And to quote
22 from the Commission,
23
24 "The result would be that a number of the
25 existing justices of the peace would be able to
26 retain their titles but would be stripped of
27 their powers."
0112
1
2 So, that was one recommendation.
3 The second recommendation was that justices of the
4 peace should be appointed only according to merit.
5 There should be no political patronage involved, no
6 favoritism. They said a justices of the peace council
7 should be established. It would be composed of the
8 chief judge of the Provincial Courts and another
9 Provincial Court judge, a JP and two laypersons, and
10 this would -- council would consider proposed
11 appointments to the justices of the peace and make
12 recommendations to the Attorney Generals, and this
13 would ensure that appointments were based on merit.
14 So, that was the second major recommendation.
15 The third recommendation was to abolish staff JP
16 appointments. The Commission was concerned about the
17 tendency, in recent years it said, to make some
18 appointments of justices of peace from existing court
19 clerical staff. It was concerned that there was a
20 conflict of interest between the clerical duties of JPs
21 and their judicial duties and felt that the only way to
22 overcome that was to abolish all of the staff JP
23 appointments except in remote areas where there was
24 really no -- no other alternative.
25 So those were the major recommendations of the Law
26 Reform Commission Report with regard to justices of the
27 peace.
0113
1 Q Now, in relation to their recommendations on the
2 transition, can I refer you again to Professor Mewitt's
3 Report that was under Tab 38 of Volume III of the book
4 of authorities?
5 A Yes.
6 Q At page 7 -- Professor Mewitt at the bottom of page 6
7 starts reviewing the Ontario Law Reform Commission
8 Report and that continues on pages 7 and 8.
9 On page 7, the last full paragraph -- or, the last
10 paragraph on page 7, about five lines down, could you
11 read starting with "The Commission repeated"?
12 A
13 "The Commission repeated the criticisms contained
14 in the McRuer Report of the present fee structure
15 and again recommended its abolition but felt that
16 the wholesale revocation of existing commissions
17 as Justice of the Peace would be unnecessary if
18 its recommendations as to a Justice of the Peace
19 only being able to exercise those powers assigned
20 to him by direction of a Provincial Court judge
21 were followed. Those not so directed would
22 retain the title and honour but have no powers."
23
24 Q So, what's your understanding of the operation of the
25 proposal for the transition then?
26 A Well, the Law Reform Commission recognized the reality
27 that a number of people had been appointed as JPs for
0114
1 political reasons and the Government was not anxious to
2 make enemies by revoking their appointments, and what
3 many people were concerned about was the honour more
4 than actually having work to do. So, the way to -- to
5 move then, the transition to a new and better system,
6 was to prescribe -- have a judge prescribe the duties
7 the JPs could perform, and unless a judge had -- had --
8 was able to give direction to say that particular JPs
9 can do certain things, then they wouldn't be able to do
10 anything so they would have the title. They wouldn't
11 be stripped of the title, but they wouldn't have any JP
12 duties. So, they felt that was a realistic way of
13 moving to a new system.
14 Q Would they have the opportunity to continue with their
15 judicial functions and to be paid for them?
16 A No, they would not.
17 Q At pages 4 to 6 of your report, you describe the Mewitt
18 Report, its recommendations and some aspects of the
19 implementation of the Law Reform Commission Report --
20 A Yes.
21 Q -- and the McRuer Report, would you, please, review and
22 summarize that section of your report?
23 A Right. Well, Mewitt was asked to look at the system of
24 JPs in Ontario, because in 1971 the Bail Reform Act
25 gave JPs more power, the Provincial Courts Amendment
26 Act in 1980, the Provincial Offences Act of 1980, all
27 these ended up in giving JPs more power, and still
0115
1 there hadn't been very much reform of the JP system.
2 So, Mewitt was asked to review the system to make
3 recommendations.
4 So, first of all, he noted that the main
5 recommendations of the McRuer Report and the Law Reform
6 Commission Report had not yet been implemented. There
7 was a little bit better training for the JPs. They
8 were no longer supervised by Crown attorneys, but the
9 fee system was still there, the system of staffed JPs
10 was still there, and so he said that he based his
11 recommendations on the goal of preventing the public
12 from developing a "cynicism towards the administration
13 of justice" that might result from the shortcomings of
14 a substandard JP system.
15 So, he made a number of recommendations. He said
16 that there should just be two categories of JPs,
17 presiding and non-presiding, and the presiding JPs
18 would have the power to hear and determine cases and to
19 conduct bail hearings. Non-presiding would have much
20 more limited powers, just to issue warrants or
21 summonses, search warrants, to adjourn criminal cases
22 in the absence of a judge.
23 With regard to qualifications, he said that all
24 JPs should have at least a grade 12 education. They
25 should be appointed only on the recommendation of the
26 JP Review Council that is composed of judges.
27 Recommended a JP training programme, and he recommended
0116
1 that under the new system all JPs should have security
2 of office, and what he meant by that, was freedom from
3 arbitrary dismissal or threat of dismissal. He said
4 the JPs should be removed only according to due
5 process.
6 He was very critical as the McRuer and Law Reform
7 Commission Reports had been of the system of fee JPs.
8 He said,
9
10 "As far as the fee system is concerned, I can
11 only state that the sooner it is abolished, the
12 better .... I should have thought it was
13 axiomatic that to discourage a Justice of the
14 Peace from performing his functions carefully and
15 properly cannot be tolerated."
16
17 He was also critical of the system of staff JPs
18 that had developed. He said that there is -- went into
19 this in great detail, but basically there was a
20 conflict between the two roles. He said that no court
21 administrator should be appointed a justice of the
22 peace unless it is demonstrated to be necessary. Then
23 only as a justice of the peace non-presiding.
24 Q Sorry?
25 A No court administrator should ever be appointed a
26 presiding justice of the peace.
27 Q Right, and you mentioned his statement about the sooner
0117
1 the fee system is abolished the better?
2 A Yes.
3 Q Had he recommended the wholesale cancellation of the
4 existing appointments, as did McRuer in his report?
5 A He -- he recommended a somewhat slower transition in
6 terms of the fee system. The -- what he recommended
7 was the system that had been recommended by the Law
8 Reform Commission that only -- that you should try to
9 move to a system of salaried JPs and that only those
10 qualified from the previous system should be salaried
11 JPs.
12 With regard to the staff JPs, he recommended a
13 slower transition, that staff JPs would continue to
14 hold their positions but that no new staff JPs should
15 be appointed.
16 Q And on pages 7 and 8 of your report, would you review
17 some of the implementations of the Mewitt
18 recommendations? Could you summarize those?
19 A Yes. There was a gradual implementation of the Mewitt
20 recommendations beginning in 1990 -- 1989 and
21 continuing right up to 1995, and what happened, first
22 of all, in 1989, there was an associate chief judge
23 coordinator of JPs who was appointed, and he was --
24 developed a system very much like the judicial review
25 system that was recommended by Mewitt in the Law Reform
26 Commission to recruit and recommend appointments of
27 very well-qualified people as justices of the peace, so
0118
1 the appointment system was improved.
2 Shortly before 1989, there was a system of
3 directives. There were five different classifications
4 of justices of the peace and so JPs who had been
5 appointed under the previous system were only able to
6 do the things that they could do according to these
7 five different levels.
8 The two-system recommendation of Mewitt began to
9 be implemented in 19 -- 1991, but it wasn't fully
10 implemented until 1995, and some of the major changes
11 that occurred were between 1994 and 1995 where it was
12 known as the conversion exercise, where staff and fee
13 JPs were converted into salaried JPs either full time
14 or part time. And what -- basically how it worked was
15 that the fee JPs had to -- had to apply for a full-time
16 or part-time JP position, salaried position, and the
17 staff JPs had to choose between a full-time or
18 part-time JP position or a public service position.
19 They couldn't hold both.
20 Q So they weren't able to retain their position as staff
21 and as well their JP appointment?
22 A No, they had no option. If -- if they chose to remain
23 a public servant, then their commissions were
24 cancelled.
25 So by 1995, you see most of the major
26 recommendations of the McRuer Law Reform Commission and
27 Mewitt had finally been put into place.
0119
1 Q And had there been an attempt -- or, had there been an
2 adoption prior to 1994 in relation to the hiring of --
3 or, sorry, in relation to the appointing of staff JPs
4 as -- as staff as JPs?
5 A What happened was that after -- shortly after the
6 Mewitt Report, the practice of appointing staff JPs
7 ceased, but there was still a couple of hundred who
8 were around in the -- in the 1990s, and I mean so many
9 had been appointed in the '70s and '80s, and they
10 tended to keep their positions, so that the use of
11 staffed JPs was very, very frequent right up to the
12 conversion exercise in '94/'95.
13 So, in other words, the slow transition that
14 Mewitt had recommended was, indeed, a very slow
15 transition. I think much slower than he thought it
16 would be.
17 Q And do you have any comment on the public perception of
18 the use of staff JPs during that period?
19 A Well, I would think that any member of the public who
20 realized that a justice of the peace was also a public
21 servant who reported to the Attorney General would see
22 that as being unfair. There would be an obvious
23 conflict of interest there. Many of the members of the
24 public don't realize, when they come before a justice
25 of the peace, that they wear two hats, but whenever
26 they do become aware, they are often very disappointed
27 by it and concerned.
0120
1 Q Do you have any comment to make on the Sibson Report
2 that you referred to on page 8?
3 A The Sibson Report isn't terribly important except that
4 it shows that in 1987 there were still 120 staff JPs,
5 even though the practice of appointing them had ceased
6 after the Mewitt Report.
7 Q And the JP Remuneration Commission Report which you
8 referred to on page 9, do you have any comments to make
9 in relation to that report?
10 A Well, once again, that dealt basically with what JPs do
11 and made a number of recommendations about their
12 remuneration, but the interesting thing in the report,
13 once again, is it indicates how many justices of the
14 peace that there actually were.
15 Q And in the middle of page 9, there is a quote from the
16 Remuneration Commission Report. The first sentence
17 reads,
18
19 "Non-presiding Justices of the Peace are judicial
20 officers who provide a variety of judicial
21 services to the public, to the police, and to the
22 court system."
23
24 What are -- what is your understanding of the meaning
25 of "judicial officer"?
26 A Well, I think a judicial officer is anyone who makes an
27 adjudicated decision and adjudication is the process of
0121
1 settling disputes about legal rights and duties, so a
2 judicial officer is anyone who engages in adjudication.
3 Q Can you provide some examples?
4 A Well, adjudication runs all the way from the kinds of
5 things that the non-presiding justices of the peace are
6 doing such as bail hearings to what Superior Court
7 judges do and Provincial Court judges do. So, it
8 includes the work of all the -- what we know as judges
9 in Canada, plus all the work of the justices of the
10 peace and judicial and quasi judicial tribunals and
11 administrative tribunals that engage in adjudication.
12 Q So, are you suggesting that an official of the Labour
13 Relations Board -- what would they be described by
14 yourself --
15 A I would describe a member of Labour Relations Board as
16 a judicial officer, because they're engaged in
17 adjudication.
18 Q The next study that you refer to in your report,
19 starting at page 10, is entitled Understanding
20 Justices: A Study of Canadian Justices of the Peace,
21 by Anthony Doob, Patricia Baranek and Susan Addario.
22 Could you review some of the matters that you've
23 addressed in your report on -- arising from that
24 report?
25 A Yes, the -- according to the introduction of the Doob
26 Study, the study was conducted because of concern at
27 the Centre for Criminology at the University of Toronto
0122
1 about all the recommendations that had been made about
2 justices of the peace since the time of McRuer, all of
3 the reports that had come out, all the expressions of
4 concern and yet very little up until that time had
5 changed, and so they were interested in actually
6 interviewing justices of the peace to find out what
7 their perceptions and concerns were. So, they did
8 interviews with JPs in British Columbia, Manitoba,
9 Ontario and Quebec, but -- and they also administered a
10 survey of JPs in Manitoba -- I'm sorry, in British
11 Columbia and Ontario, and what they found was that
12 there are a number of concerns raised. They -- it's
13 interesting from the JPs' perspectives themselves, they
14 were similar to many of the concerns raised in the
15 other reports I've talked about.
16 There was a concern raised about staff JPs in all
17 four provinces. They -- many of the JPs saw a conflict
18 of interest there.
19 Another serious concern was the training of JPs.
20 Many JPs outside of British Columbia felt that their
21 training was simply not adequate and many felt that
22 formal training in the law, not necessarily a law
23 degree, but formal training in the law was a way of
24 giving JPs the skills that they needed to deal with --
25 with the problems that came before them. And most
26 justices in the survey in B.C. and Ontario, 84 percent
27 felt that it would be helpful for the justices to have
0123
1 some formal training in law before being appointed.
2 Q Hmm umm.
3 A And I think this study underlines that without adequate
4 training, JPs not only feel -- sometimes feel
5 incompetent, and Doob points out many instances where
6 they just didn't feel qualified to make the decisions
7 they were called upon to make, because their training
8 wasn't adequate.
9 They also suffer from a lack of respect by others
10 in the justice system. So, in other words, the JPs saw
11 themselves as being looked down upon, not having a lot
12 of respect from lawyers, even sometimes Provincial
13 Court judges and litigants, because they were seen as
14 laypersons and not professionals.
15 Q And in your opinion, is there any relationship between
16 this issue of training or qualification and judicial
17 independence?
18 A I think there is. I think that the -- if judicial
19 officers feel qualified to make the decisions that
20 they're being faced with, they're able to act more
21 independently. In other words, they're -- they're less
22 likely to talk to people that perhaps they shouldn't be
23 talking to for advice about how to decide a particular
24 case. So, I think that the better the training of the
25 JPs, the more likely they are to behave independently.
26 Q You also refer to the fee system once again in the
27 context of that report.
0124
1 A Yes, the -- the fee system was generally not seen as a
2 very good thing by most of the JPs who were interviewed
3 or surveyed.
4 Q And there was some comment on the use of a roster
5 system?
6 A Yes, even the roster system was -- was -- had not
7 overcome the problems, because police officers who were
8 shopping around for a JP who was going to be
9 sympathetic could simply wait for the right JP to come
10 up on the roster or avoid the JPs that they didn't
11 want, so I think the Doob Report outlines that it's
12 very difficult to fix up a fee system and overcome the
13 disadvantages and the violations of independence that
14 are involved in that.
15 Q Now --
16 A But there was also a concern about the classification
17 system of judges in the provinces where the JPs were
18 assigned duties by letters of authority from the
19 Provincial Court judge, and there was some concern that
20 that might affect their independence, because in order
21 to -- to move up the JP ladder to a higher level, it
22 might be necessary to make decisions that were pleasing
23 to the judge who issued the letters of authority. So,
24 that problem was outlined as well.
25 Q Now, page 12, you summarize the changes to the JP
26 system in Ontario. I think you've covered a number of
27 those. Would there be anything that you need to add or
0125
1 that you wish to emphasize?
2 A No, I think I've already summarized all the changes
3 that took place up till '94/'95.
4 Q Now, on page 13 at the top, in the process of
5 describing the categories of JP in Ontario and their
6 numbers prior to '89 and the changes to categories, the
7 first paragraph, do you -- can you summarize what you
8 are saying about the transition during that period?
9 A Right. Well, the amendments in 1989, first of all,
10 they imposed a retirement age of 70 years, so what
11 happened is that the JP commissions before 1989 were --
12 weren't cancelled. It's just that those were -- who
13 had -- those who'd reached retirement age were not
14 reappointed under the new system. So, some of the JPs
15 under the new system in the post-1989 system received
16 more restrictive assignments to reflect the work that
17 they'd actually been doing. There was one JP that I
18 was told about who had authority to preside over the
19 Provincial Offences Court prior to 1989, but in the new
20 directions that he got after 1989, he no longer had
21 that authority. So, some JPs appointed before 1989
22 retained their pre-1989 orders in council, but they
23 weren't assigned any judicial responsibilities by the
24 associate chief judge coordinator of JPs. So,
25 therefore, in effect, they had no JP duties.
26 THE COURT: Do I understand you to say that
27 that applied only to JPs who were not active or were
0126
1 over 70?
2 A Yes, or unwilling to give up a public service position.
3 THE COURT: That is, they were staff JPs?
4 A That's right. Yeah, hmm umm, that second part occurred
5 later on in 1994/95.
6 Q MR. MAYBANK: You've -- you refer at the bottom
7 of page -- near the bottom of page 13 to the 1994/95
8 conversion and the impact that had on incumbent JPs,
9 could you please review that?
10 A Okay. Well, all of the fee JPs who were on a duty
11 roster 365 days a year were eligible to be converted to
12 salary JPs. If they -- if they weren't on the duty
13 roster and some were on the duty roster for less time
14 than that and some had taken themselves off the duty
15 roster, they weren't eligible to be converted. So, I
16 think about 200 of the 300 or so fee JPs that were in
17 existence at the time were converted to full-time or
18 part-time salaried JP positions. Those that weren't
19 converted --
20 THE COURT REPORTER: I'm sorry, did you say "weren't"?
21 A Those who were not converted basically did not want to
22 be converted or hadn't been on the duty roster for 365
23 days a year.
24 Q MR. MAYBANK: So, if they -- a fee JP who was on
25 the duty roster part of the year wanted to retain his
26 JP status, could he do so?
27 A No. I mean the title was retained, but there were no
0127
1 letters of authority given, so there was no JP work for
2 that person to do after the -- after 1989.
3 Q Under the next heading, you refer to the Ontario
4 Reforms and the public interest. Could you tell us
5 what you mean by "public interest"?
6 A Okay. I refer to the public interest as -- as a
7 situation that promotes or enhances the basic
8 principles and practices of democratic government,
9 including the rule of law, the impartial application of
10 the law and adherence to the principles of fundamental
11 justice.
12 Q And I think there is perhaps a bit of repetition in the
13 couple of next paragraphs with what you likely have
14 already covered.
15 On page 15, you refer to the concept of judicial
16 independence. Could you provide your understanding of
17 the concept of judicial independence?
18 A Yes, well, I've studied the concept of judicial
19 independence since it began to develop way back in the
20 11th century, and I see it basically as a mechanism to
21 promote judicial impartiality. In other words,
22 gradually it became more important -- more and more
23 important for judges and other judicial officers to be
24 able to make impartial decisions. Judicial
25 independence is a relationship between judges or other
26 judicial officers and others, so it refers to being in
27 a position to be able to make decisions without any
0128
1 illegitimate pressure outside of the law or outside of
2 the courtroom.
3 Q Could you describe what sort of pressures would, in
4 your opinion, would interfere with that independence?
5 A Well, prior to the act of settlement in 1700/1701,
6 there were times when judges were manipulated through
7 changing their salaries, so that's one sort of pressure
8 that might be used to try to impact the decision-making
9 process of the judge.
10 A second would be having the office itself. In
11 other words, there were times, before 1701, when judges
12 who were not favored by the monarch would be fired or
13 worse, and so judicial independence refers to freedom
14 from anything, especially in the legislative and
15 executive branches of government that might be used to
16 try to impact the impartiality of judges to impact the
17 decision-making process.
18 Q And what are the goals of impartiality?
19 A Well, the goal of impartiality is to promote the rule
20 of law. Judges and other judicial officers should do
21 their best to make decisions that are impartial. They
22 shouldn't have any preconceived ideas about who ought
23 to win a case, and they should be open to hearing both
24 sides of a dispute, and they shouldn't have any
25 interests that would bias them in favour of one side or
26 the other either from the perspective of themselves or
27 the -- from the point of view of the public.
0129
1 Q Are there any other goals of impartiality?
2 A Well, the impartiality promotes the ideal of the rule
3 of law and, therefore, it promotes respect for the
4 whole system of government. It promotes respect for
5 the courts and other judicial and quasi judicial
6 tribunals, and it promotes respect for the system of
7 government and confidence in government, so it's
8 definitely in the public interest to have a system that
9 promotes impartiality and independence.
10 Q And you've provided an opinion on how the Ontario
11 reforms are not -- or, are not in the public interest.
12 Can you provide us with that opinion?
13 A Yes, well, I think the reforms in Ontario especially
14 1989/90 and 1994/95 are definitely in the public
15 interest, because they enhance the independence of
16 justices of the peace; and, therefore, their ability to
17 make decisions impartially; and, therefore, the public
18 confidence in the system of JPs in Ontario.
19 Q And do you have any comment with respect to the impact
20 of reforms on incumbents or newly appointed officers?
21 A Well, there were some -- there were some costs along
22 the way in the Ontario system.
23 Q In terms of your opinion on the impartiality?
24 A Oh, the way that the reforms were handled in Ontario
25 didn't impact the impartiality of individual justices
26 of the peace or the JP system as a whole, and I don't
27 know of any instances at all where any individual JPs
0130
1 felt that they were being pressured to decide in a
2 certain way, and I know for a fact that the JPs in
3 Ontario feel that the system as a whole is far better
4 off now than it was before. That is, from their
5 perspective, it's more independent, and they can decide
6 more impartially.
7 Q What about from the perspective of the staff JP that
8 was faced with the choice of either becoming a justice
9 of the peace or a staff member?
10 A That person was -- was not very happy. He would have
11 preferred to continue doing both. In other words, to
12 be a -- have his civil service job in the daytime and
13 go to night court and make some extra money in the
14 evening, so he was unhappy that there was a cut in
15 income, but it's -- there was no hint that the reforms
16 did or were meant to impact his decision making, so
17 there was no detrimental impact on impartiality.
18 Q Okay. The next report you review is the Manitoba Law
19 Reform Commission Report of 1991. Could you summarize
20 that, please?
21 A Yes. Well, the Manitoba Law Reform Commission was
22 asked to report on both Provincial Court judges and
23 justices of the peace in response to some concerns that
24 had been raised in Manitoba during the previous year
25 to -- about the Provincial Courts and justices of the
26 peace. So, in many ways it was -- it identified
27 concerns that had been identified in the reports in
0131
1 Ontario that I've already talked about. It said that
2 there were a number of problems with the existing
3 system of justices of the peace in Manitoba that
4 negatively impacted on their independence. For
5 example, it said that not enough attention was given to
6 the educational qualifications needed by justices of
7 the peace. Appointments up until that time had been at
8 pleasure rather than during good behaviour. It
9 recommended a nominating committee to -- to encourage
10 applications for JP appointments and screen them and
11 make recommendations to the Attorney General. It
12 recommended a three-tier system of JPs so that the
13 qualifications of the JPs would fit their -- their
14 duties, and the -- the presiding and senior presiding
15 JPs would have appointments during good behaviour,
16 although the non-presiding JPs who just had
17 administrative functions would have appointments at
18 pleasure.
19 It said that there would have to be a transition
20 to the new system. It was very critical of this system
21 of fee JPs and staff JPs. During the transition to the
22 new system, there would be a nominating committee, and
23 it would consider whether the existing JPs were
24 qualified to become presiding JPs, that is those that
25 would have appointments during good behaviour. So,
26 only those deemed qualified would be appointed as
27 presiding JPs and the others who had been JPs before
0132
1 that time would become non-presiding JPs that is with
2 administrative functions only, but they would still
3 retain the title of JP.
4 Q Could I ask you to turn to Volume III of the
5 respondent's book of authorities and Tab 36 is the --
6 is the report that you are currently speaking of.
7 A Yes.
8 Q Do you recall if the -- if the Commission addressed the
9 question of the Charter and the needs for independence
10 and impartiality of the justices of the peace?
11 A Yes, it did.
12 Q And I ask you to turn to page 21.
13 A Yes.
14 Q Pages 1 to 25, in your opinion, are the -- is the
15 Commission attaching a great deal -- attaching -- could
16 you comment on the significance the committee might be
17 drawing from the Charter independence and impartiality
18 in relation to JPs?
19 A Yes, what they've done is they reviewed the major
20 decisions about judicial independence that impact
21 justices of the peace right up until they wrote their
22 report in 1991, and they've been very concerned that
23 justices of the peace in Manitoba up until that time
24 might not be independent enough to meet the tests that
25 were evolving under the Charter of Rights and
26 Freedoms. So, they're very concerned about suggesting
27 a new system of JPs that would meet the Charter tests.
0133
1 Q And can I refer you to the bottom of page 22 under
2 Independence, and they state,
3
4 "Although the decision of the Supreme Court
5 in Valente examined the status of a judge of the
6 Ontario Provincial Court when adjudicating a
7 Highway Traffic Act charge, the objective
8 conditions required of a provincial judge should
9 be no less essential to the independence of a
10 justice of the peace or magistrate when
11 performing a similar function."
12
13 Do you have a comment on the level of independence that
14 they think is appropriate for JPs?
15 A The presiding JPs ought to have security of tenure.
16 The salary -- the method of determining the salary
17 shouldn't be such that the JPs could be manipulated
18 through changes to their salary.
19 Q And on -- on page 23 --
20 A But in terms of --
21 Q Oh, sorry.
22 A -- the JPs would still be supervised by the provincial
23 court judges, so in terms of institutional independence
24 that element would be more protected by the provincial
25 courts than by -- there would be no separate JP court.
26 Q And on page 23, the second full paragraph, they state,
27
0134
1 "Security of tenure was identified by the
2 Supreme Court as the first essential condition of
3 judicial independence. Minimally, that
4 protection must allow removal from the bench only
5 for cause related to the ability to perform
6 judicial duties, and then only after an
7 independent review where the judge affected is
8 given a full opportunity to be heard."
9
10 In light of that position on tenure that the
11 Commission has taken, I'd like you to -- or, I'd like
12 to refer you to the transitional provisions that they
13 recommended on pages 75 and 76, and I'm going to read
14 you a portion of those, and then I'll be asking you for
15 a comment.
16 First under the Transition, they noted the
17 Ontario, Saskatchewan, North West Territories reforms
18 that,
19
20 "... fundamental changes were recently effected
21 in Ontario and Saskatchewan, using slightly
22 different transitional positions. However, it is
23 interesting to note that, in both jurisdictions,
24 the legislation applied to those justices of the
25 peace holding office at the time of
26 implementation."
27
0135
1 So, there was, in fact, incumbents.
2
3 "In Ontario, a certain group of justices of
4 the peace (those authorized to preside at trials)
5 are deemed by statute to be presiding (JPs),
6 while the remaining existing officers receive
7 their designation from the Lieutenant Governor in
8 Council following recommendation by the Review
9 Council. There is a further provision which
10 prohibits the exercise of authority or the
11 receipt of remuneration unless (and) until a
12 justice of the peace is designated ..."
13
14 MR. HUNTER: "... or until."
15 MR. MAYBANK:
16
17 "... unless or until a justice of the peace is
18 designated either presiding or non-presiding.
19 Thus, even though both designations in Ontario
20 hold office subject to removal only after an
21 inquiry of the Review Council, those deemed
22 non-presiding at the time of proclamation are
23 (effectively) removed from office without that
24 process."
25
26 They refer to the Saskatchewan situation where,
27
0136
1 "... all existing justices of the peace continued
2 in office but all were deemed to be designated
3 non-presiding justices of the peace and that
4 designation could be changed by the Lieutenant
5 Governor in Council. Just as there is no
6 consultation process for appointment, there is
7 none for a change of designation from
8 non-presiding to presiding.
9 The proposed scheme for the Northwest
10 Territories, on the other hand, would simply
11 revoke the appointments of those justices of the
12 peace appointed before the new provisions come
13 into force.
14 ...
15
16 Because justices of the peace and magistrates
17 may hold office for many years, a solution which
18 did not affect those presently appointed would
19 have no appreciable impact for a very long time.
20 However, we have seen that the concerns expressed
21 by the courts suggest a more immediate need for
22 significant changes to the laws affecting the
23 independence of justices of the peace and
24 magistrates in Manitoba.
25 For those reasons, we are agreed that
26 transitional provisions should be implemented
27 to achieve the desired reforms as soon as
0137
1 practicable, with the least possible disruption
2 to the administration of justice and to the
3 individual ... officers themselves."
4
5 MR. HUNTER: "... judicial officers."
6 Q MR. MAYBANK: Oh, sorry, "individual judicial
7 officers themselves."
8 And are you familiar with the transitional
9 provisions that they recommended?
10 A Yes, they're similar to the transitional provisions
11 that were implemented in Saskatchewan or in Ontario in
12 1994/95.
13 Q Are you familiar with the Alberta reforms, and how
14 these might compare to them?
15 A Yes, I am, and it's similar to the recommendations in
16 the Ontario -- in the Manitoba Law Reform Commission
17 that justices of the peace under the new system would
18 have to be -- have to be qualified in Alberta by a
19 judicial council. In Manitoba, it would be by a
20 nominating committee, and if they were not found to be
21 qualified, then they would not have any adjudicated
22 responsibilities under the new system.
23 Q That last sentence says they would be deemed,
24 thereafter, to be non-presiding justices of the peace.
25
26 A That's right, and they would have administrative
27 responsibilities only.
0138
1 Q And if I could just read the last paragraph.
2
3 "Of course, persons now performing the kinds of
4 functions assigned to these (future) officers
5 would be eligible to apply and the Nominating
6 Committee would have the opportunity to draw from
7 those presently performing the kinds of work
8 involved (assuming those persons possess the
9 necessary attributes as identified by the
10 Committee). While there may be some currently
11 holding office whose powers will be curtailed
12 (such as those who are inactive, who are holding
13 employment which is incompatible with the office,
14 or whose qualifications for some reason are
15 particularly inadequate), it is anticipated that
16 their numbers will be small and it does seem
17 appropriate that their powers be permanently
18 limited."
19
20 In your opinion, is there an inconsistency when
21 the Commission, on the one hand, suggests that the same
22 security of tenure ought to be extended to justices of
23 the peace as judges and that protection must allow
24 removal from the Bench only for cause related to the
25 ability to perform judicial duties and then only after
26 an independent review; and on the other hand,
27 recommending a reform in which incumbents may find
0139
1 themselves not qualified to be appointed under the new
2 scheme, in terms of the public interest or
3 independence?
4 A Right, no, what they're talking about doing is moving
5 to a system where there's -- there's a much greater
6 guarantee of independence and -- and now what the Law
7 Reform Commission said when it was talking about the
8 security of tenure, on page 23, immediately after the
9 section that you read is,
10
11 "Tenure must be secure against discretionary or
12 arbitrary influence by the appointing authority
13 and it may be for a fixed term or a specific task
14 or until an age of retirement."
15
16 So, what -- this transitional provision, it's not
17 inconsistent from what they've said earlier about
18 security of tenure, because it's not discretionary or
19 arbitrary influence by the appointing authority. In
20 other words, it's not an attempt -- it wouldn't be an
21 attempt by the Manitoba Government to try to interfere
22 with the way in which JPs are making their decisions or
23 the direction that they're going in an arbitrary or
24 discretionary manner.
25 Q What about --
26 A So, therefore, from that perspective, it wouldn't
27 violate what the Law Reform Commission means by
0140
1 security of tenure.
2 Q What about public perception?
3 A No, I think the public perception would see -- would be
4 a violation of independence if, in fact, it was the
5 executive or possibly the legislature that was
6 attempting to interfere with security of tenure in
7 order to pressure JPs to decide in a certain way or an
8 individual JP. I think the public would look at these
9 reforms and say, well, here is -- we're moving to a
10 much better system of JPs, and there is no attempt by
11 the Government to interfere with impartiality; and
12 therefore, there is no interference with judicial --
13 with independence.
14 Q Okay. Thank you. On page 17 --
15 THE COURT: I wonder if I might put a question
16 to Dr. Greene just before we leave these pages 75 and
17 76 of the Manitoba Report?
18 A Hmm umm.
19 THE COURT: Do you know whether at the time
20 just before Ontario implemented its reforms in 1989 --
21 A Hmm umm.
22 THE COURT: -- there was then in place
23 statutory provisions requiring an inquiry for removal
24 by Review Council of some kind, or did that occur only
25 as part and parcel of the reforms?
26 A That occurred as part and parcel of the reforms in
27 Ontario.
0141
1 THE COURT: And is that so in Saskatchewan and
2 Manitoba as well?
3 A That's right. It's my understanding.
4 THE COURT: So those incumbents who were
5 removed from office without that process did not have
6 the statutory benefit of that process when the reforms
7 were made?
8 A That's right.
9 THE COURT: Okay. Is this a convenient time to
10 take the afternoon break?
11 MR. MAYBANK: Yes, sir.
12 THE COURT: Thank you.
13 (ADJOURNMENT)
14 THE COURT: Mr. Maybank?
15 Q MR. MAYBANK: Professor Greene, I'd like to ask
16 you a hypothetical question arising out of His
17 Lordship's question to you just before the break.
18 If we assume there is a reform to the office of JP
19 in two jurisdictions, and in Jurisdiction 'A' the
20 incumbent JPs have no statutory protection of removal
21 only for cause after an independent inquiry. Let's
22 assume the reform results in the incumbent not being
23 reappointed. Then in Jurisdiction 'B,' they do have
24 such statutory protection, but the reform, again,
25 results in the incumbent not being appointed. In your
26 opinion, is the difference between 'A' and 'B'
27 significant in determining whether the reforms are in
0142
1 the public interest or violate independence?
2 A No, I think the key is -- is whether the reforms result
3 in greater independence for the system of justices of
4 the peace. Now, you were talking about justices of the
5 peace only, weren't you?
6 Q Yes.
7 A Because in neither case would the security of tenure
8 for life be constitutionally protected, so the key is
9 do the reforms lead to significantly greater
10 independence for the incumbents, and can they be
11 accomplished in such a way that there is no arbitrary
12 interference with the decision making powers of JPs or
13 the JP system to try to get individuals or groups to
14 decide in a certain way.
15 Q So, is the presence or absence of constitutional
16 independence dependent on the presence or absence of
17 the statutory conditions?
18 A In my view, no.
19 THE COURT: Do you want to say that one again?
20 Q MR. MAYBANK: Is the presence or absence of the
21 constitutional protection of independence, or the
22 extent of it, dependent on the presence or absence of a
23 statutory guarantee for tenure?
24 A No.
25 THE COURT: Well, didn't the prior witness just
26 talk about the -- what a lack of security of tenure
27 there was prior to 1991?
0143
1 MR. MAYBANK: He reported on the practice or
2 tradition of whether there was a tenure in practice,
3 yes. He wasn't providing an opinion on whether
4 constitutionally there was a guarantee.
5 THE COURT: Is that an argument, that the
6 activities of the Crown prior to 1991 in discharging
7 JPs wholesale was unconstitutional?
8 MR. MAYBANK: The court would have to determine
9 independently whether or not there was a constitutional
10 guarantee of tenure prior to that time, and if there
11 was a constitutional guarantee of tenure, certainly the
12 actions of discharging persons that enjoy that
13 constitutional guarantee would be unconstitutional.
14 THE COURT: And that's what this witness is
15 saying? Is that what your question was intended to
16 elicit?
17 MR. MAYBANK: The question was intended to elicit
18 whether or not the presence of a statutory guarantee
19 for tenure affected the nature of constitutional
20 guarantee that this office ought to attract.
21 THE COURT: All right.
22 MR. MAYBANK: My Lordship expressed some -- some
23 question about whether or not there was a statutory
24 guarantee in Ontario or Saskatchewan for tenure at the
25 time that these reforms took place, and I was trying to
26 find out from my witness if -- if that was significant
27 for his purposes of determining whether their --
0144
1 whether the reform would violate a constitutional
2 guarantee of independence.
3 THE COURT: Yes, I see your point. Thank you.
4 Q MR. MAYBANK: Professor Greene, could you briefly
5 review the changes to the JP system in Saskatchewan?
6 A Yes, in 1987 or '88, there was a case in Saskatchewan
7 known as Baylis, B-A-Y-L-I-S, in which one of the
8 superior courts found that a justice of the peace in
9 Saskatchewan was not independent, because he was
10 reporting to a police officer, and so this led to some
11 major reforms in the JP system in Saskatchewan in
12 1988.
13 At that time, there were 670 justices of the peace
14 in Saskatchewan and many were political appointments.
15 Not a lot of thought had been given to the
16 qualifications of the justices of the peace or whether
17 they might be in conflict of interest situation in
18 discharging their duties as justice of the peace.
19 So, the new legislation and regulations that were
20 passed in Saskatchewan in 1988 created two levels of
21 justices of the peace or two general categories,
22 presiding and non-presiding. The non-presiding JPs
23 were -- were assigned only administrative duties, no
24 adjudicative duties. Then the regulations created
25 three categories of presiding justices of the peace.
26 The presiding justices of the peace had adjudicative
27 duties. Senior presiding justices of the peace had
0145
1 more extensive duties, and then there was a justice of
2 the peace who is a court official who would have
3 basically administrative responsibilities.
4 So, with the reforms, there were 180 persons who
5 were appointed as presiding justices of the peace, and
6 I can't remember if that includes nine senior -- I
7 believe it includes nine senior presiding justices of
8 the peace, and then there were sixty persons who were
9 designated as court officials presiding justices of the
10 peace. So, these 240 new presiding justices of the
11 peace, most had been JPs under the old system, but a
12 number of the pre-1988 JPs had their appointments
13 cancelled either because they had reached the
14 retirement age of 65, or because they had been
15 inactive, or because there was a conflict of interest
16 between their regular employment and being a justice of
17 the peace, such as working in a police station.
18 So, the remainder of the justices of the peace,
19 the rest of the 670 who weren't appointed as presiding
20 justices of the peace became non-presiding justices of
21 the peace, and I'm told by officials in Saskatchewan
22 that basically it's -- that's like being a commissioner
23 of oaths. There is really very little for them to do.
24 Q So, this retirement age, did it -- did it exist prior
25 to the reforms?
26 A No, it did not.
27 Q So, what happens to a justice of the peace who is
0146
1 appointed for life and yet was over the age of 65 at
2 the time of the reforms?
3 A Their appointments were cancelled.
4 Q So he wasn't grandfathered?
5 A No, and the problem with the system before 1988 is all
6 the JP appointments were for justices of the peace for
7 the Province of Saskatchewan, so basically they could
8 do anything prescribed in any legislation, federally or
9 provincially, gave justices of the peace powers.
10 Q Was there a system of letters of authority or ...
11 A No system at all. The police would find out who the
12 JPs were and -- and decide which ones they wanted to
13 use.
14 Q And how did the pre-reform jurisdiction of these JPs
15 compare to the post-reform jurisdiction?
16 A Well, the -- the post-reform jurisdiction was quite
17 different. The authority of the JPs was very clearly
18 set out for the -- now, the -- for the 180 justices of
19 the peace who were appointed as presiding justices of
20 the peace, they -- there were duty rosters established
21 in the larger centers in Prince Albert, Regina and
22 Saskatoon. So, that this was an attempt to cutdown on
23 the abuse of the fee JP system.
24 Q But it didn't eliminate it?
25 A It didn't eliminate the problems altogether, no.
26 Q Or eliminate the fee JP system?
27 A No, it didn't eliminate the fee JP system.
0147
1 Q And in your opinion, what was the purpose of the
2 reforms in Saskatchewan? I think you refer to that
3 over on page 19.
4 A Well, the purpose was to enhance the independence and
5 impartiality of JPs to ensure the persons with
6 conflicts of interest didn't hold appointments as
7 justices of the peace and that there was a better
8 system of control over justices of the peace and what
9 they did and how they were scheduled.
10 Q And in your opinion, were the reforms in the public
11 interest, notwithstanding the impact on incumbent JPs?
12 A They were definitely in the public interest, because
13 the system of JPs after 1988 was much better than it
14 had been before.
15 Q In the next section of your report, you review the
16 statutory amendments to the Alberta justices of the
17 peace system passed in 1998. Could you, please, review
18 that for us, please?
19 A Right. Well, the legislation that was passed in 1998
20 in Alberta, first of all, abolished the fee JP system.
21 Second, it abolished the staff JP system. Third, it
22 established term appointments and enhanced security of
23 tenure for justices of the peace, and it set up a
24 system to assure that the justices of the peace under
25 the new system would be adequately qualified for the
26 work that they were intended to do and the
27 qualifications would be determined not by the
0148
1 Government or public official but by the Alberta
2 Judicial Council.
3 Q Could I refer you to Mr. Hawrelechko's affidavit at
4 page 14. For your convenience, there is a list of the
5 changes to be made by the Justice Statutes Amendment
6 Act described by Mr. Hawrelechko in his affidavit.
7 It's on page 14 of the original affidavit, not any of
8 the tabs.
9 A Okay.
10 Q Could you describe briefly each of these Alberta
11 reforms and advise how they might relate to the
12 recommendations of any of the reports reviewed by you
13 or to the reforms implemented in other jurisdictions?
14 THE COURT: Mr. Hunter?
15 MR. HUNTER: My Lord, I'm not aware of any
16 evidence before this court that Alberta ever considered
17 those things and to back door it this way is improper.
18 This is presuming that Alberta had reference to these
19 reports. If there was evidence that they had, that's
20 fine, but this is not the way to put it in.
21 MR. MAYBANK: I'm not asking my expert to make
22 any presumptions, sir. I'm asking him to relate the
23 recommendations of any of the reports he has reviewed
24 or to the reforms implemented in other jurisdictions to
25 the Alberta reforms.
26 THE COURT: So you want to know whether, in his
27 view, 31(a) is similar to a reform carried out in
0149
1 Ontario or Saskatchewan or Manitoba?
2 MR. MAYBANK: Or recommended in such and such a
3 report.
4 THE COURT: And not whether those reforms were
5 considered by the drafters of the Alberta legislation.
6 MR. MAYBANK: Right.
7 THE COURT: All right.
8 MR. HUNTER: That deals with my problem. Thank
9 you.
10 Q MR. MAYBANK: Now, if we look at paragraph 31(a),
11 the process leading to the appointments and how it was
12 changed. Can you briefly describe that and advise
13 whether that's consistent with any of the
14 recommendations in any of the reports you've reviewed
15 or the changes made in other jurisdictions?
16 A Yes, it's -- it's a system of appointments that are
17 based on merit, so it certainly addresses the concerns
18 of McRuer about patronage appointments. It certainly
19 addresses the concerns of the Law Reform Commission
20 that appointments should be based only on merit, and
21 similarly, Mewitt and the Manitoba Law Reform
22 Commission and also the concerns expressed in Doob.
23 So, it's quite consistent with all the comprehensive
24 studies that have been done in Canada about the reforms
25 of justices of the peace.
26 Q And sub-paragraph (b)?
27 A Yes. Yes, first of all, it -- now, it abolishes the
0150
1 system of staff JPs, and it also expands the categories
2 of persons that might have conflicts of interest if
3 they were justices of the peace, so certainly that
4 takes care of the -- that's in accord with the
5 recommendations of the Law Reform Commission Report,
6 the Mewitt Report --
7 Q Pardon me, the Law Reform Commission Report of which
8 jurisdiction?
9 A In Ontario and the Law Reform Commission Report in
10 Manitoba and the Mewitt Report in Ontario and also the
11 concerns expressed in the Doob Report.
12 Q And the sub (c), the reduction in the number of
13 categories of JP.
14 A Yes, so not only are the authorities of appointees
15 clearly set out, instead of relying on letters of
16 assignment from judges as to what authority JPs can --
17 can -- what authority they have, the authorities are
18 set out in the legislation. So, that takes care of
19 some of the concerns expressed in the Doob Report, and
20 it's also consistent with recommendations -- the
21 recommendations of the Mewitt Report.
22 Q And the use of letters of authority, did you ...
23 A Yes, the -- it -- the letters of authority were
24 criticized in the Doob Report and so this takes into
25 account that type of criticism. I don't know whether
26 it came from the Doob Report, but it's certainly
27 consistent with that recommendation that letters of
0151
1 authority not be relied on because that might affect
2 the independence of JPs as they want a higher
3 classification.
4 Q And the next subsection, sub (d)?
5 A Yes. Yes, the designation of full time or part time,
6 and this classification cannot be changed without the
7 consent both of the judicial council and the
8 appointee. So, once again, that takes -- that is
9 consistent with the recommendations of the Doob Report
10 that highlight the justices of the peace are sometimes
11 worried that others might arbitrarily affect their
12 classification and that this may affect their decision
13 making.
14 Q How does it relate to the current Ontario legislation?
15 A It's -- I think it goes further than the Ontario
16 legislation, because classifications can be changed at
17 the recommendation of the chief judge coordinator.
18 Q And sub-paragraph (e)?
19 A Yes. Well, this is something that I think is unique in
20 Alberta, the ten-year terms. So, I don't -- I don't
21 see how it relates to any of the other reports. I
22 personally find it quite intriguing -- an intriguing
23 idea. I am glad that the terms are nonrenewable,
24 because if they were renewable, there would be concerns
25 about the independence of the JP especially in the last
26 few years of the term as to whether the appointment
27 might be renewed, what they might need to do to get it
0152
1 renewed. So, I think it's a very good thing that it's
2 not renewable.
3 Q Are --
4 A And I can understand the need of the Government to have
5 term appointments, because technology is changing very
6 quickly. It may not be known what kinds of persons are
7 needed ten years from now to undertake those kinds of
8 duties or whether technology might have affected the
9 needs, so it's certainly, from a public policy
10 perspective, provides flexibility without interfering
11 with independence.
12 Q And the next sub-paragraph dealing with the complaints
13 process.
14 A Yes. Well, that is certainly in accord with the
15 recommendations of the Law Reform Commission in
16 Ontario, the Law Reform Commission in Manitoba, the
17 Mewitt Report. I think it's essential to have a -- a
18 method of objectively handling complaints.
19 Q There, of course, was a complaints mechanism in the
20 Justice of the Peace Act since 1991 with the JP Review
21 Council -- or, sorry, JP Review Committee.
22 A Right. According to this affidavit, these amendments
23 provide for a judicial inquiry where required and
24 narrow the grounds in which orders for removal might
25 made. And in addition, there is provision for the
26 Judicial Council to develop conflict of interest
27 guidelines and a code of ethics, and that's -- that's
0153
1 in accord with the recommendations of the Manitoba Law
2 Reform Commission.
3 Q And sub-paragraph (g), that's the transitional
4 provision?
5 A Yes.
6 Q How does it operate?
7 A Well, it's very similar to the transitional provision
8 in Ontario and the one in Saskatchewan and the one that
9 was recommended by the Manitoba Law Reform Commission
10 in that all those who were found to be qualified shall
11 be appointed presiding justices of the peace.
12 The way in which it's different is the
13 qualification is determined by a judicial council. So,
14 Manitoba it was determined administratively, in Ontario
15 the qualification was determined by the JP Review
16 Committee, so it's similar to the Ontario system except
17 the result of this, of course, was that the judicial
18 council in Alberta set the bar higher than the JP
19 Review Committee did in Ontario.
20 Q And the sub-paragraph (h), the mandating of the passing
21 of regulations respecting remuneration and benefits.
22 A Establishing Judicial Compensation Commission, I think
23 that's -- it's in accord with the recommendations of
24 the Manitoba Law Reform Commission. The only other
25 province that has a Judicial Compensation Commission
26 for JPs right now is -- is Ontario, though I understand
27 that it's being considered in Yukon as well.
0154
1 Q All right, and Professor Greene, back to your report,
2 under Item No. 6, on page 19.
3 A Hmm umm.
4 Q The second paragraph you speak specifically to legal
5 education.
6 A Yes.
7 Q Could you expand on that?
8 A Yes, once again, going back to the report by Anthony
9 Doob, 84 percent of the JPs who were surveyed in
10 Ontario and British Columbia said that it would be
11 helpful to have some form of training in the law before
12 being appointed. It is interesting that the decision
13 of the Alberta Judicial Council on June the 24th, 1998,
14 decided that the JPs under the new system should have a
15 law degree and five years of experience.
16 So, from my perspective, I think the main
17 recommendation that comes out of the Doob Report is
18 that the -- in order for the justices of the peace to
19 operate effectively and credibly, in order to have the
20 independence and respect that they need to operate
21 effectively, they do need to have some type of legal
22 training and certainly this requirement of five years,
23 plus a law degree, I think will go a long way toward
24 addressing the concerns about the JP system that had
25 been expressed for three decades.
26 Q In the next paragraph, particularly at the -- near the
27 top of page 20, when you speak about the change of the
0155
1 manner in which JPs have their authority determined
2 either by letter --
3 A Yes.
4 Q -- of authority, now it's in the legislation and how
5 that relates to legal education, could you explain
6 that, please?
7 A Yes, well, I think it's far better to have the
8 authority of JPs set out in legislation rather than
9 having it decided on an individual basis by a
10 supervising judge depending on the qualifications; but
11 if you're going to have it in the legislation, then you
12 have to make sure that JPs are, in fact, qualified to
13 do the job that is set out in the legislation. So, I
14 think the fact that the -- the judicial council in
15 Alberta has decided on the educational requirements
16 that they have set is -- is in accord with making the
17 legislative standards work.
18 Q What type of problem could be encountered if there
19 wasn't a qualification?
20 A If there wasn't a qualification set out in the
21 legislation?
22 Q Right.
23 A Well, that would mean that the -- the duties that could
24 be performed by justices of the peace would have to be
25 set out by directives, by supervising judges, and the
26 problem with that system is that the JPs may feel, and
27 the Doob Report illustrated this, they may feel that
0156
1 they have to please the judge who's deciding what
2 they're qualified to do in order to get to the higher
3 qualification and higher rate of pay.
4 Q And towards the bottom of page 20, you expressed an
5 opinion on whether it was in the public interest to
6 grandfather all current non-sitting JPs. Could you
7 state your opinion, please?
8 A I don't think it's in the public interest to
9 grandfather all non-sitting justices of the peace,
10 because if you look at the amount of time that it's
11 taken to institute reforms in Ontario, where they did
12 do quite a bit of grandfathering, it would just delay I
13 think much needed reforms to the JP system for an
14 unacceptably long period of time.
15 On the other hand, I do feel that it's important
16 that -- that those who have been full time in the
17 system before and are deemed by the judicial council to
18 be not qualified under the new system should be --
19 should be given another job at the same level of salary
20 and benefits, that is the same status, otherwise it
21 would be very unfair.
22 Q You said "unacceptably long." Unacceptably -- pardon
23 me, unacceptably from whose perspective?
24 A From the perspective of the public. The purpose of the
25 court system in general and the JP system in particular
26 is to provide service to the public, to provide an
27 impartial method of -- impartial and effective method
0157
1 of handling disputes, and if reforms that have been
2 identified as necessary for so many years by so many
3 different reports are allowed to languish yet again for
4 another 10 or 15 years, I think that could do enormous
5 harm to the perception of the fair administration of
6 justice.
7 Q And finally, on page 21, the last paragraph, in your
8 report before your qualifications, you mention the
9 analysis of interviews with judges. Would you like to
10 provide a comment?
11 A Yes, when -- when I was interviewing appeal court
12 judges, along with my colleagues Professor McCormick,
13 Professor Baar and Professor Szablowski. Do you need
14 me to give you spellings? You've got McCormick. Baar
15 is B-A-A-R and Szablowski is S-Z-A-B-L-O-W-S-K-I.
16 I personally interviewed 56 appeal court judges,
17 and I asked all of them, amongst many other things,
18 what they meant by judicial independence and if they
19 saw any threats to their independence, and there were
20 at least two judges who said that the -- one of the
21 threats to judicial independence was a tendency to
22 inflate the meaning of judicial independence, to go
23 beyond its true meaning which was being free from the
24 threat of arbitrary manipulation by the executive or
25 legislative branches of government or sometimes other
26 groups in order to impact decisions and that inflating
27 the meaning beyond that was -- was -- they feared would
0158
1 trivialize the concept of judicial independence and
2 cause the public and governments not to take it as
3 seriously as it was meant to be taken. And in -- it's
4 my opinion, that the claim that the current plan to
5 improve the JP system in Alberta violates judicial
6 independence is an example of the inflation of the idea
7 of judicial independence beyond its true meaning.
8 Q Finally, Dr. Greene, what is your opinion on the
9 Alberta reforms and the public interest?
10 A Well, if the public interest is -- is defined as
11 procedures that promote the basic principles of
12 democratic government, such as the rule of law and
13 impartial decision making, accountability and so on, I
14 think that the reforms in Alberta are definitely in the
15 public interest. The new JP system is a big
16 improvement over the old system, and I don't think the
17 transition to the new system, as it's set out both in
18 the legislation and the decision of the judicial
19 council, harms the public perception of the
20 independence and impartiality of the system.
21 Q MR. MAYBANK: Thank you, Dr. Greene. Those would
22 be all my questions.
23 My Lord, Dr. Greene resides in Toronto and is
24 booked on a flight at 5:30 which is the last flight
25 going there tonight and in -- unless my friends think
26 they might be able to finish up this afternoon, it was
27 going to be my suggestion that perhaps he could be
0159
1 allowed to go catch his flight and be back on Friday
2 for cross-examination.
3 THE COURT: Mr. Hunter?
4 MR. HUNTER: Well, My Lord, I had understood
5 that he needed to be away at 4:15 so that gives me
6 negative three minutes to do my cross-examination
7 so who's kidding who?
8 THE COURT: You're not up to that challenge?
9 MR. MAYBANK: No, no, I was going to suggest he
10 would be prepared to stay later today if there was any
11 possibility of you finishing up today.
12 THE COURT: I think we better do him Friday.
13 MR. HUNTER: Thank you. I agree.
14 THE COURT: You don't mind another trip west,
15 Dr. Greene.
16 All right. We'll adjourn then until Friday at
17 10 a.m.
18 A Thank you, sir.
19 THE COURT: I should caution you, Dr. Greene,
20 that you will be under cross-examination on Friday, so
21 you ought not to discuss your testimony between now and
22 then.
23 A Right.
24 ---------------------------------------------------------------------
25 PROCEEDINGS ADJOURNED JANUARY 15, 1999 AT 10 A.M.
26 ---------------------------------------------------------------------
27