Bill 39 - Justices of the Peace Act

BILL 39

Justices of the Peace Act

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

Definitions

1 The following definitions apply in this Act.

“associate chief judge” means the associate chief judge of the court. (juge en chef associé)

“chief judge” means the chief judge of the court. (juge en chef)

“court” means the Provincial Court. (cour)

“judge” means a judge of the court. (juge)

“Judicial Council” means Judicial Council as defined in the Provincial Court Act. (Conseil de la magistrature)

“Minister” means the Minister of Justice and includes any person designated by the Minister to act on the Minister’s behalf. (ministre)

Appointment

2( 1) The Lieutenant-Governor in Council may, on the recommendation of the Minister, appoint the justices of the peace that are considered necessary.

2( 2) A justice of the peace shall be a practising member in good standing of the Law Society of New Brunswick but is not allowed to practise as a barrister or solicitor in the Provincial Court, The Court of King’s Bench of New Brunswick or The Court of Appeal of New Brunswick during the justice of the peace’s term of office.

2( 3) Before taking office as a justice of the peace, a person shall, before the chief judge, take and subscribe an oath of office or make and subscribe an affirmation of office to truly and faithfully discharge the duties of the office.

2( 4) A certificate of the oath or affirmation having been duly administered, signed by the chief judge shall be forwarded without delay to the Minister.

2( 5) A justice of the peace shall be appointed for a term of up to ten years and is eligible for reappointment.

Jurisdiction

3( 1) Subject to any limits prescribed by regulation, a justice of the peace may exercise the jurisdiction of a judge

(a) under an Act or regulation or a provision of an Act or regulation of Canada, the Province or another province or territory of Canada prescribed by regulation,

(b) under a local government by-law or a provision of a local government by-law prescribed by regulation, and

3( 2) A justice of the peace has the authority to act throughout the Province.

Conflict of interest

4 A justice of the peace does not have jurisdiction to hear any matter in which the justice of the peace has or has had an interest.

Chief judge – supervision of justices of the peace

5( 1) Justices of the peace are under the direction of the chief judge, who shall direct and supervise the assignment of duties to justices of the peace.

5( 2) The chief judge may delegate any duty imposed on the chief judge under this Act to the associate chief judge.

Term of office

6 A justice of the peace shall hold office until the earliest of the following events:

(a) the expiry of the justice of the peace’s term of office;

(b) the effective date of the justice of the peace’s resignation or retirement;

(d) the justice of the peace attains the age of 75 years.

Resignation or retirement

7 A justice of the peace may at any time resign or retire by giving a written notice signed by that justice of the peace that includes the effective date of the resignation or retirement and delivering that notice to the Minister.

Continuation of authority

8( 1) A justice of the peace who resigns or retires after starting to hear a matter remains seized of the matter after the effective date of the resignation or retirement until the matter is concluded or for a period of 12 weeks, whichever occurs first.

8( 2) During the period referred to in subsection (1), the justice of the peace may

(a) continue to hear evidence and argument in the matter,

(b) give judgment in the matter, and

(c) make an order or do anything else in their jurisdiction to complete the matter as if the justice of the peace had not resigned or retired.

Replacement of justice of the peace

9( 1) Subject to the Criminal Code (Canada), the chief judge may set down a matter for a rehearing by another justice of the peace or by a judge if the justice of the peace hearing the matter

(a) dies or is absent from office due to illness or other cause,

(b) resigns or retires and does not give judgment within the period allowed under subsection 8(1), or

9( 2) A justice of the peace or judge, as the case may be, assigned to rehear a matter under subsection (1)

(a) may commence a new hearing of the matter, or

(b) with the consent of the parties, complete the hearing of the matter.

Designation of chief justice of the peace

10( 1) The Lieutenant-Governor in Council may, on the recommendation of the Minister, designate a chief justice of the peace for a term not exceeding ten years from among the justices of the peace appointed under section 2.

10( 2) The chief justice of the peace shall assist the chief judge with the chief judge’s responsibilities under this Act.

10( 3) A chief justice of the peace is eligible to be redesignated.

10( 4) The term of office of a chief justice of the peace shall not exceed the term remaining in their term of office as a justice of the peace.

10( 5) If the term of office of a chief justice of the peace expires and the justice of the peace is not redesignated, they may continue to act as a justice of the peace for the term remaining in their term of office as a justice of the peace.

Relief justices of the peace

11( 1) The Minister may appoint a person as a relief justice of the peace for a term of up to one year if

(a) a justice of the peace is or will be absent from office due to illness or any other cause, or

(b) in the opinion of the chief judge, an additional justice of the peace is urgently required for the proper functioning of the court.

11( 2) A relief justice of the peace shall be a practising member in good standing of the Law Society of New Brunswick but is not allowed to practise as a barrister or solicitor in the Provincial Court, The Court of King’s Bench of New Brunswick or The Court of Appeal of New Brunswick during the relief justice of the peace’s term of office.

11( 3) Before taking office as a relief justice of the peace, a person shall, before the chief judge, take and subscribe an oath of office or make and subscribe an affirmation of office to truly and faithfully discharge the duties of the office.

11( 4) A certificate of the oath or affirmation having been duly administered, signed by the chief judge, shall be forwarded without delay to the Minister.

11( 5) A relief justice of the peace is deemed to be a justice of the peace and may exercise all the powers of a justice of the peace appointed under section 2.

Immunity

12 A justice of the peace has the same immunity from liability as a judge.

Complaints and reviews

13( 1) The chief judge may review, at any time, with or without a complaint under subsection (2) having been made, any matter respecting the misconduct, neglect of duty or inability to perform the duties of a justice of the peace and may refer the matter in writing to the chair of the Judicial Council.

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

13( 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.

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

13( 5) When a matter is referred to the chair of the Judicial Council without a complaint having been made, the chair shall appoint a review committee to conduct an inquiry, and the matter shall be deemed to be a complaint made under subsection (2) for the purposes of the review committee.

Chief judge may suspend a justice of the peace

14( 1) The chief judge may suspend a justice of the peace whose conduct is in question from the performance of the justice of the peace’s duties with pay, on the terms and conditions the chief judge determines, pending the resolution of a complaint, review, inquiry or 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.

14( 2) Within ten business days after suspending a justice of the peace, the chief judge shall request the chair of the Judicial Council 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

15( 1) When a complaint is made to the chief judge under subsection 13(2), 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 is without merit, 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 justice of the peace whose conduct is in question, including through mediation, or

( i) be dismissed,

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

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

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

(a) dismiss the complaint, or

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

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

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

15( 5) If the chief judge dismisses a complaint under paragraph (1)(a), the complainant may request that the complaint be referred to the chair of the Judicial Council for review under section 16.

Review of the chair of the Judicial Council

16( 1) On reviewing the recommendations of the chief judge referred to in paragraph 15(1)(c), the chair of the Judicial Council shall

(a) accept the recommendations of the chief judge,

(b) dismiss the complaint on any grounds referred to in paragraph 15(1)(a), whether the chief judge made the recommendation or not, or

16( 2) On reviewing a decision of the chief judge under subsection 15(5), the chair of the Judicial Council shall

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

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

16( 3) The chair of the Judicial Council shall

(a) make a decision within 20 business days after the date the recommendation is received, and

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

Review committee

17( 1) A review committee appointed by the chair of the Judicial Council to conduct an inquiry under this Act shall consist of three members of the Judicial Council, one of whom shall be a person appointed by the Lieutenant-Governor in Council under paragraph 6.1(1)(e) of the Provincial Court Act, and one member shall be designated by the chair of the Judicial Council to serve as the chair of the committee.

17( 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.

17( 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.

17( 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 professional fees and disbursements to be paid to the member of the Law Society of New Brunswick.

17( 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.

17( 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.

17( 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.

17( 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.

17( 9) The counsel to the review committee shall inquire into the allegations of misconduct, neglect of duty or inability to perform the duties of a justice of the peace whose conduct is in question for the purpose of gathering all information that may be relevant and present their findings to the review committee.

17( 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 is without merit, 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 justice of the peace whose conduct is in question, including through mediation, or

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

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

17( 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 of the Judicial Council its findings as to the allegations of misconduct, neglect of duty or inability to perform the duties of the justice of the peace whose conduct is in question.

17( 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.

17( 14) A review committee shall complete the inquiry and make its decision within 30 business days after the date the committee is appointed.

Formal hearing

18( 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.

18( 2) A formal hearing shall begin no later than 20 business days after the date the chair of the Judicial Council receives the referral under paragraph 17(10)(c).

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

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

18( 5) A formal hearing shall be held in private unless the justice of the peace 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.

18( 6) A quorum of the Judicial Council for a formal hearing shall be determined in accordance with section 6.56 of the Provincial Court Act.

Powers of Judicial Council re a formal hearing

19( 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

(c) recommend to the Lieutenant-Governor in Council that the justice of the peace whose conduct is in question be removed from office.

19( 2) The Judicial Council may impose on a justice of the peace 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 justice of the peace whose conduct is in question apologize to the complainant or to any other person;

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

(d) suspend the justice of the peace whose conduct is in question from the performance of the justice of the peace’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 hold office as a justice of the peace, the justice of the peace whose conduct is in question take specified measures, including receiving counselling, treatment or instruction;

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

(g) impose any other non-monetary sanction.

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

19( 4) A decision of the Judicial Council made under this section shall be in writing and provided to the complainant and the justice of the peace whose conduct is in question.

19( 5) The chair of the Judicial Council may request that any person involved with a specified measure taken by a justice of the peace under an order referred to in paragraph (2)(e) provide an update on the progress made by the justice of the peace.

Removal from office

20 On receipt of the Judicial Council’s recommendation under paragraph 19(1)(c), the Lieutenant-Governor in Council shall remove the justice of the peace from office.

Costs

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

Regulations

22 The Lieutenant-Governor in Council may make regulations

(a) respecting the jurisdiction of justices of the peace, including without limitation,

( i) prescribing Acts and regulations or provisions of Acts and regulations for the purposes of paragraph 3(1)(a),

( ii) prescribing local government by-laws or provisions of local government by-laws for the purposes of paragraph 3(1)(b),

( iii) prescribing matters for the purposes of paragraph 3(1)(c),

( iv) limiting the jurisdiction of justices of the peace with respect to prescribed matters,

( v) prescribing matters for the purposes of subparagraph (iv);

(b) respecting the handling of documents by justices of the peace;

(d) prescribing fees for services provided by justices of the peace;

(e) prescribing to whom fines, penalties, forfeitures, fees or costs collected by a justice of the peace are to be paid and the manner and times for those payments;

(f) respecting the service of a notice of formal hearing for the purposes of subsection 18(3);

(g) prescribing forms to be used for the purposes of this Act or the regulations;

(h) defining words and expressions used but not defined in this Act for the purposes of this Act, the regulations or both;

(i) respecting any other matter that may be necessary for the proper administration of this Act.

Commencement

23 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.