Bill 98 - An Act to Amend the Provincial Court Act

BILL 98

An Act to Amend the Provincial Court Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Subsection 1(1) of the Provincial Court Act, chapter P-21 of the Revised Statutes, 1973, is amended

(a) by repealing the following definitions:

“chairman”;

“panel”;

(b) in the English version of the definition “Plan” by striking out the period at the end of the definition and substituting a semicolon;

“business day” means a day other than a Saturday or a holiday as defined in the Interpretation Act; (jour ouvrable)

“chair” means the chair of the Judicial Council; (président)

“review committee” means a review committee appointed by the chair under this Act. (comité d’examen)

2 Section 6.1 of the Act is amended

(a) in paragraph (1)(b) of the English version by striking out “chairman and the other as vice-chairman” and substituting “chair and the other as vice-chair”;

(b) by repealing subsection (2) and substituting the following:

6.1( 2) Despite subsection (4), a person appointed to the Judicial Council remains as a member of the Judicial Council until the member resigns or is reappointed or replaced.

6.1( 3) The vice-chair of the Judicial Council shall act in place of the chair when the chair is absent or unable to act.

(d) by repealing subsection (4) and substituting the following:

6.1( 4) The persons appointed to the Judicial Council under paragraph (1)(e) shall

(a) be appointed for a term of up to five years and are eligible for reappointment for one or more additional terms, and

(b) be paid the remuneration and expenses the Lieutenant-Governor in Council determines.

3 The heading “Quorum of Judicial Council” preceding section 6.3 of the Act is repealed.

4 Section 6.3 of the Act is repealed.

5 Section 6.4 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

6.4( 1) When the Judicial Council is deciding any matter

(a) the chair shall not vote except in the case of an equality of votes,

(b) a decision by a majority of the members is a decision of the Judicial Council, and

(b) by repealing subsection (2) and substituting the following:

6.4( 2) When the Judicial Council or a review committee, as the case may be, is deciding any matter respecting a judge appointed under paragraph 6.1(1)(d) whose conduct is the subject of a review under section 6.51 or of a complaint under section 6.511, the judge is not entitled to vote on or participate in deliberations or decisions of the Judicial Council or the review committee respecting the matter.

6 The Act is amended by adding after section 6.5 the following:

Powers of chief judge with or without a complaint

6.51( 1) The chief judge may review, at any time, with or without a complaint under section 6.511 having been made, any matter respecting the misconduct, neglect of duty or inability to perform the duties of a judge and may refer the matter in writing to the chair.

6.51( 2) The chair may review, at any time, with or without a complaint under section 6.511 having been made, any matter respecting the misconduct, neglect of duty or inability to perform the duties of the chief judge or associate chief judge.

6.51( 3) When a matter under subsection (1) is referred to the chair or the chair reviews a matter under subsection (2) without a complaint under section 6.511 being made, the chair shall appoint a review committee to conduct an inquiry and the matter shall be deemed to be a complaint made under section 6.511 for the purposes of the review committee.

Complaint against a judge

6.511( 1) Any person may make a complaint against a judge alleging the misconduct, neglect of duty or inability to perform duties of the judge by making a complaint, in writing, to the chief judge who shall review the complaint.

6.511( 2) Any person may make a complaint against the chief judge or associate chief judge alleging the misconduct, neglect of duty or inability to perform duties of the chief judge or associate chief judge, as the case may be, by making a complaint, in writing, to the chair, in which case the chair has the powers and duties of the chief judge under subsection (4) and sections 6.52 and 6.521.

6.511( 3) On receiving a complaint, the chief judge may designate another judge to review and make recommendations to the chief judge on how the complaint should be dealt with.

6.511( 4) If the chief judge considers it appropriate, the chief judge may reassign a judge who is the subject of a complaint to administrative duties or to a different place until the complaint is finally disposed of.

Chief judge may suspend a judge

6.52( 1) The chief judge may suspend a judge whose conduct is in question from the performance of the judge’s duties with pay, on the terms and conditions the chief judge determines, pending the resolution of a review under section 6.51, of a complaint under section 6.511, or of an inquiry or of a formal hearing, and may revoke the suspension before the outcome of the review, complaint, inquiry or formal hearing, as the case may be, when a change in circumstances warrants the revocation of the suspension.

6.52( 2) Within ten business days of suspending a judge, the chief judge shall request the chair to review the circumstances giving rise to the suspension and the chair may confirm, vary or revoke the suspension.

Powers of chief judge when complaint made

6.521( 1) When a complaint is made to the chief judge under section 6.511, the chief judge shall review the complaint and

(a) dismiss the complaint if the chief judge considers that

( i) the complaint is frivolous or vexatious,

( ii) the complaint does not contain any allegations of misconduct, neglect of duty or inability to perform the duties of the judge whose conduct is in question, or

( iii) there is not sufficient evidence to support the complaint,

(b) attempt to resolve the complaint, with the agreement of the complainant and the judge whose conduct is in question, including through mediation, or

( i) be dismissed,

( ii) be resolved, with the agreement of the complainant and the judge whose conduct is in question, including through mediation, or

( iii) be referred to a review committee to conduct an inquiry.

6.521( 2) If an attempt to resolve a complaint under paragraph (1)(b) fails, the chief judge shall refer the complaint to the chair who shall

(a) dismiss the complaint, or

(b) appoint a review committee to conduct an inquiry.

6.521( 3) Any discussions between the chief judge and the judge whose conduct is in question respecting the complaint are confidential and shall not be disclosed by the chief judge to the Judicial Council.

6.521( 4) The chief judge shall complete the review of a complaint and provide to the complainant and the judge whose conduct is in question a copy of the written reasons of the chief judge’s decision within 20 business days of the complaint being made.

6.521( 5) If the chief judge dismisses a complaint under paragraph (1)(a), the complainant may request that the complaint be referred to the chair for review under section 6.53.

Review of the chair

6.53( 1) On reviewing the recommendations of the chief judge referred to in paragraph 6.521(1)(c), the chair shall

(a) accept the recommendations of the chief judge,

(b) dismiss the complaint on any grounds referred to in paragraph 6.521(1)(a), whether the chief judge made the recommendation or not, or

6.53( 2) On reviewing a decision of the chief judge under subsection 6.521(5), the chair shall

(a) confirm the decision of the chief judge, or

(b) appoint a review committee to conduct an inquiry.

6.53( 3) The chair shall

(a) make a decision within 20 business days of receiving the recommendation, and

(b) advise the complainant and the judge whose conduct is in question in writing of the chair’s decision.

Review committee

6.54( 1) A review committee appointed by the chair to conduct an inquiry under this Act shall

(a) consist of three members of the Judicial Council, one of whom shall be a person appointed to the Judicial Council in accordance with paragraph 6.1(1)(e), and

(b) have one member, other than a judge of the court, designated by the chair as the chair of the review committee.

6.54( 2) The chair of the review committee shall appoint a member of the Law Society of New Brunswick to act as counsel to the review committee.

6.54( 3) The appointment of the counsel to the review committee may be revoked at any time and another member of the Law Society of New Brunswick may be appointed as a replacement.

6.54( 4) Before appointing a member of the Law Society of New Brunswick to act as counsel, the chair of the review committee shall obtain approval of the Minister for the hourly or other rate of professional fees and disbursements to be paid to the member of the Law Society of New Brunswick.

6.54( 5) When a review committee is deciding any matter

(a) a decision by a majority of the members is a decision of the review committee, and

(b) all deliberations shall be held in private.

6.54( 6) For the purposes of an inquiry, the chair of the review committee may, by summons, require the attendance before the review committee of any person whose evidence may be material to the subject of the inquiry and may order any person to produce any papers and documents that appear necessary.

6.54( 7) A person summoned under subsection (6) shall attend and answer all questions put by the counsel to the review committee respecting the subject of the inquiry and shall produce any papers and documents that the counsel to the review committee requires.

6.54( 8) When a person summoned under subsection (6) fails to comply with the requirements of subsection (7), the provisions of section 6 of the Inquiries Act apply with the necessary modifications.

6.54( 9) For the purposes of an inquiry, the counsel to the review committee shall inquire into the allegations of misconduct, neglect of duty or inability to perform the duties of a judge whose conduct is in question for the purpose of gathering all information that may be relevant and present its findings to the review committee.

6.54( 10) Following its review of the findings of counsel, a review committee may

(a) dismiss the complaint if the review committee considers that

( i) the complaint is frivolous or vexatious,

( ii) the complaint does not contain any allegations of misconduct, neglect of duty or inability to perform the duties of the judge whose conduct is in question, or

( iii) there is not sufficient evidence to support the complaint,

(b) attempt to resolve the complaint, with the agreement of the complainant and the judge whose conduct is in question, including through mediation, or

(c) refer the complaint to the chair for a formal hearing before the Judicial Council and provide a report of their findings to the chair.

6.54( 11) When a complaint is dismissed by a review committee, the review committee shall advise the chair that no further action shall be taken and shall give written reasons for its decision and provide the reasons to the complainant and the judge whose conduct is in question.

6.54( 12) When a complaint is not referred by a review committee to a formal hearing before the Judicial Council, the review committee shall report to the chair its findings as to the allegations of misconduct, neglect of duty or inability to perform the duties of the judge whose conduct is in question.

6.54( 13) The determinations and findings of a review committee referred to in subsections (11) and (12) are not subject to review by the Judicial Council.

6.54( 14) A review committee shall complete the inquiry and make its decision within 30 business days of the review committee being appointed.

Formal hearing

6.55( 1) When a complaint is referred by a review committee for a formal hearing before the Judicial Council, the Judicial Council shall conduct a formal hearing respecting the allegations set forth in the complaint, and it has all the powers of a commissioner under the Inquiries Act.

6.55( 2) A formal hearing shall commence not later than 20 business days after the chair is referred a complaint under paragraph 6.54(10)(c) for a formal hearing.

6.55( 3) Notice of the formal hearing together with a copy of the complaint shall be served on the judge whose conduct is in question in accordance with the regulations.

6.55( 4) The counsel to the review committee may act as the prosecutor at the formal hearing.

6.55( 5) A formal hearing shall be held in private unless the judge whose conduct is in question requests that it be held in public or the Judicial Council determines that there are compelling reasons in the public interest that it be held in public.

Quorum

6.56 A quorum of the Judicial Council for a formal hearing shall be five persons and shall include

(a) the chair or vice-chair of the Judicial Council,

(b) a judge of The Court of Queen’s Bench of New Brunswick appointed under paragraph 6.1(1)(c),

(d) a member appointed by the Lieutenant-Governor in Council under paragraph 6.1(1)(e), and

(e) one other member appointed under paragraph 6.1(1)(c), (d) or (e).

Powers of Judicial Council re a formal hearing

6.57( 1) Following a formal hearing, the Judicial Council shall

(a) dismiss the complaint,

(b) impose one or more of the sanctions referred to in subsection (2), or

6.57( 2) The Judicial Council may impose on a judge whose conduct is in question any one or more of the following sanctions it considers appropriate in the circumstances:

(a) issue a reprimand;

(b) order that the judge whose conduct is in question apologize to the complainant or to any other person;

(c) suspend the judge whose conduct is in question from the performance of the judge’s duties, without pay, for a period of up to 90 days;

(d) suspend the judge whose conduct is in question from the performance of the judge’s duties, with pay and with or without conditions, for a period of time it considers appropriate;

(e) order that, as a condition of continuing to sit as a judge, the judge whose conduct is in question take specified measures, including receiving counselling, treatment or instruction;

(f) require the judge whose conduct is in question to report to the chair concerning compliance with an order made by the Judicial Council; and

(g) impose any other non-monetary sanction.

6.57( 3) When a recommendation is made to the Lieutenant-Governor in Council under paragraph (1)(c), the Judicial Council may suspend the judge whose conduct is in question or may continue a suspension until the judge is removed from office.

6.57( 4) Failure on the part of a judge whose conduct is in question to comply with a sanction imposed under this section shall be deemed to constitute misconduct under section 6.

6.57( 5) A decision of the Judicial Council made under this section shall be in writing and provided to the complainant and the judge whose conduct is in question.

6.57( 6) The chair may request that any person involved in providing specified measures to a judge referred to in paragraph (2)(e) provide an update on the progress made by the judge.

Removal from office

6.58( 1) On receipt of the Judicial Council’s recommendation under paragraph 6.57(1)(c), the Lieutenant-Governor in Council shall remove the judge from office.

6.58( 2) When a judge is removed from office under subsection (1), a copy of the Order in Council and all reports, evidence and correspondence relating to the removal shall be laid before the Legislative Assembly by the Minister if it is then sitting, or if it is not sitting, at the next ensuing sitting.

Costs

6.59 When the Judicial Council dismisses a complaint, it may make an order for the reimbursement of the costs of the judge whose conduct was the subject of a formal hearing that it considers appropriate, and any reimbursement shall be paid from the Consolidated Fund.

7 The heading “Investigation of judge’s misconduct” preceding section 6.6 of the Act is repealed.

8 Section 6.6 of the Act is repealed.

9 The heading “Report on results of investigation” preceding section 6.7 of the Act is repealed.

10 Section 6.7 of the Act is repealed.

11 The heading “Suspension of judges” preceding section 6.8 of the Act is repealed.

12 Section 6.8 of the Act is repealed.

13 The heading “Inquiry by panel” preceding section 6.9 of the Act is repealed.

14 Section 6.9 of the Act is repealed.

15 The heading “Formal hearing” preceding section 6.10 of the Act is repealed.

16 Section 6.10 of the Act is repealed.

17 The heading “Panel’s report, disposition by Judicial Council, removal of judge” preceding section 6.11 of the Act is repealed.

18 Section 6.11 of the Act is repealed.

19 Subsection 6.12(1) of the Act is repealed.

20 The heading “Powers of chief judge, judge’s residence, lapse of designations” preceding section 10 of the Act is repealed and the following is substituted:

Powers and duties of chief judge

21 Section 10 of the Act is repealed and the following is substituted:

10( 1) The chief judge shall supervise the judges in the performance of their duties and have the power and duty to

(a) designate the places where a judge is to hold sittings,

(b) designate the places where a judge is to establish and maintain an office,

(d) designate the places and the areas within which a judge is to exercise their jurisdiction,

(e) designate, with the consent of the Minister, the place at which a judge is to establish residence,

(f) require a judge to act during the absence of another judge in the place and stead of the judge who is absent,

(g) issue directives, administrative standards and procedures to the judges, and

(h) establish continuing education requirements for judges.

10( 2) When the chief judge considers it appropriate, the chief judge may require a judge to produce a medical certificate, including a medical certificate for physical fitness or mental fitness, or both.

10( 3) When the Chief Justice of New Brunswick considers it appropriate, the Chief Justice of New Brunswick may require the chief judge or the associate chief judge, as the case may be, to produce a medical certificate, including a medical certificate for physical fitness or mental fitness, or both.

10( 4) A judge shall comply with any directive, administrative standard and procedure and any continuing education requirement issued or established by the chief judge under subsection (1).

10( 5) On the appointment of a judge under subsection 2(1), the Minister shall designate the place at which the judge is to establish residence.

10( 6) When a judge has elected supernumerary status any designations made in relation to that judge under paragraph (1)(e) or subsection (5) lapse.

22 The Act is amended by adding after section 10.1 the following:

Vacancy in office of associate chief judge

10.2 In the event the office of the associate chief judge is vacant, or if the associate chief judge is unable to act due to illness, absence or other cause, the Lieutenant-Governor in Council may appoint an acting associate chief judge until the associate chief judge returns or a new associate chief judge is appointed.

23 Subsection 23(1) of the Act is amended

(a) in paragraph (k) by striking out “and” at the end of the paragraph:

(b) by adding after paragraph (k) the following:

(k.01) providing for the filing of medical certificates under subsection 10(2) or (3) by the chief judge or associate chief judge or a judge, as the case may be, and standards of health required of those judges; and

24 Section 23.1 of the Act is repealed and the following is substituted:

23.1 The Lieutenant-Governor in Council, on the recommendation of the Judicial Council, may make regulations

(a) prescribing rules for the service of the notice of the formal hearing and a copy of the complaint under section 6.55,

(b) respecting procedures in conducting formal hearings referred to in section 6.55,

(d) prescribing payments made for professional fees and disbursements of the counsel to a review committee and costs associated with a review committee or formal hearing.