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The Provincial Court Amendment Act (Justices of the Peace)

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S.M. 2005, c. 8

Bill 11, 3rd Session, 38th Legislature

The Provincial Court Amendment Act (Justices of the Peace)

(Assented to June 9, 2005)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. C275 amended

1           The Provincial Court Act is amended by this Act.

2           Section 1 is amended by adding the following definitions:

"board" means the Judicial Inquiry Board established in section 32; (« Commission »)

"civil servant" means a person who is an employee as defined in The Civil Service Act; (« fonctionnaire »)

"community justice of the peace" means a person appointed as a community justice of the peace under section 40; (« juge de paix communautaire »)

"council" means the Judicial Council established in subsection 37(1); (« Conseil »)

"judicial justice of the peace" means a person appointed as a judicial justice of the peace under section 40; (« juge de paix judiciaire »)

"justice of the peace" means a judicial justice of the peace, a staff justice of the peace or a community justice of the peace; (« juge de paix »)

"staff justice of the peace" means a person appointed as a staff justice of the peace under section 40. (« juge de paix provenant de la fonction publique »)

3(1)        Clause 7(b) is amended by striking out "a magistrate, two justices of the peace sitting together" and substituting "a justice of the peace".

3(2)        Clause 7(c) is amended

(a) by striking out "a magistrate, provincial magistrate or"; and

(b) by adding "and" at the end.

3(3)        Clause 7(d) is repealed.

4           Clause 8.1(a) is amended

(a) by striking out "magistrates, justices of the peace and other staff" and substituting "justices of the peace and staff"; and

(b) by adding ", and may establish a code of ethics for justices of the peace, including a conflict of interest policy" after "court".

5           Section 15 is repealed.

6           Section 18 is repealed.

7           The definitions "board" and "council" in section 27 are repealed.

8           Subsection 32(1) is replaced with the following:

Judicial Inquiry Board

32(1)       The Judicial Inquiry Board is established to perform the following functions:

(a) to investigate complaints under this Part alleging misconduct or incapacity of judges, and to conduct proceedings before the council when charges are laid;

(b) to investigate complaints under Part VI alleging misconduct or incapacity of judicial justices of the peace, and to conduct proceedings before a Court of Queen's Bench judge when charges are laid;

(c) to investigate complaints under The Court of Queen's Bench Act alleging misconduct or incapacity of masters, and to conduct proceedings before the Masters Judicial Council when charges are laid.

9           Parts V and VI are replaced with the following:

PART V

JUSTICES OF THE PEACE

APPOINTING JUSTICES OF THE PEACE

Appointing justices of the peace

40(1)       The Lieutenant Governor in Council may appoint justices of the peace in accordance with this Part.

Types of justices of the peace

40(2)       A person appointed as a justice of the peace may be appointed as

(a) a judicial justice of the peace;

(b) a staff justice of the peace; or

(c) a community justice of the peace.

Eligibility

41(1)       To be eligible to be appointed as a justice of the peace, a person must be at least 18 years old and reside in the province.

Ineligible persons

41(2)       The following persons may not be appointed and may not act as a justice of the peace:

(a) a sheriff or bailiff or any other person employed for the service or execution of documents in a civil process;

(b) a police officer or any other person employed to preserve and maintain the public peace;

(c)  a lawyer who holds a practising certificate under The Legal Profession Act;

(d) a person who acts as a prosecutor for an offence under a provincial or federal Act, unless it is a private prosecution;

(e) a person who works in a penitentiary or correctional institution;

(f) a member of

(i) the Legislative Assembly,

(ii) a council under The Municipal Act or The City of Winnipeg Charter,

(iii) a local committee, community council or incorporated community council under The Northern Affairs Act, or

(iv) a local committee of a local government district under The Local Government Districts Act;

(g) a person who is employed as an administrative support person to a person referred to in clauses (a) to (f).

JUDICIAL JUSTICES OF THE PEACE

Appointment recommended by nominating committee

42(1)       When appointing a judicial justice of the peace, the Lieutenant Governor in Council may appoint only a person from a list of candidates recommended by the nominating committee referred to in subsection (2).

Justice of the Peace Nominating Committee

42(2)       The Justice of the Peace Nominating Committee ("nominating committee") is composed of

(a) the Chief Judge or his or her judicial designate, who is to be the chairperson; and

(b) two other persons appointed by the minister.

Calling a meeting

42(3)       When a position of judicial justice of the peace becomes vacant,

(a) the minister must provide the Chief Judge with the names of the persons he or she has appointed to the nominating committee under subsection (2); and

(b) the Chief Judge must call a meeting of the committee.

Duties of nominating committee

42(4)       The nominating committee must

(a) establish criteria for the selection of candidates for appointment, which must include criteria respecting

(i) the assessment of the experience, knowledge, community awareness and personal suitability of candidates, and

(ii) the diversity of Manitoba society;

(b) advertise for applications and nominations of candidates, in the manner the committee decides;

(c) accept applications and nominations of candidates, in the form the committee decides;

(d) evaluate, in the manner the committee decides, the applications of candidates, and the nominations of candidates who consent to be nominated; and

(e) provide the minister with a list of at least three and not more than six qualified candidates for each position, who must not be ranked on the list, and if the nominating committee finds fewer than three qualified candidates, certify this to the minister and provide him or her with the names of the qualified candidates.

Provisions applicable to nominating committee

42(5)       Subsections 3.1(4) to (7) apply to the nominating committee, with necessary changes.

Exception: another vacancy within six months

43          Despite section 42, if another position of judicial justice of the peace becomes vacant within six months after the nominating committee provides a list of qualified candidates to the minister, that list may be used in making an appointment to fill the new vacancy.

Residence requirement

44(1)       Once appointed, a judicial justice of the peace must reside in the area of the province that the Lieutenant Governor in Council directs.

Change of residence

44(2)       When a judicial justice of the peace has been directed to reside in an area of the province, he or she must not afterwards

(a) be directed to move to another area without his or her consent; or

(b) move outside the area unless the Chief Judge approves, after consulting with the minister.

Full-time devotion to duties

45          A judicial justice of the peace must devote himself or herself full-time to the duties of a justice of the peace, and subsections 10(1) to (4) (no extra remuneration, etc.) apply with necessary changes.

Holding office during good behaviour

46          A judicial justice of the peace holds office during good behaviour and may not be removed except in accordance with Part VI (Complaints about Judicial Justices of the Peace).

Powers and duties

47          Subject to the regulations, a judicial justice of the peace has jurisdiction throughout Manitoba to exercise the powers and perform the duties conferred or imposed on justices of the peace by or under provincial or federal Acts, such as

(a) conducting trials and sentencing hearings under The Summary Convictions Act;

(b) making protection orders under The Domestic Violence and Stalking Prevention, Protection and Compensation Act; and

(c) issuing search warrants.

Salary and benefits

48(1)       A judicial justice of the peace is entitled to be paid a salary that is a percentage, set by regulation, of the salary paid to a judge, but the salary must not be less than the salary of the hearing officer designated by the Chief Judge to hear summary conviction matters under The Highway Traffic Act on the day this section comes into force.

Civil Service Act does not apply

48(2)       A judicial justice of the peace is not subject to The Civil Service Act but is entitled to

(a) vacation leave, sick leave, disability benefits and other benefits that are provided to civil servants in accordance with the Conditions of Employment Regulation under The Civil Service Act; and

(b) reimbursement for expenses in accordance with the policy applicable to civil servants.

Civil Service Superannuation Act applies

48(3)       A judicial justice of the peace is entitled to pension benefits as if he or she were an employee within the meaning of The Civil Service Superannuation Act.

If judicial justice resigns or dies

49          Subsections 6(1) (continuation of matter before resigning judge) and (2) (death etc. of judge) apply to a judicial justice of the peace, with necessary changes.

STAFF JUSTICES OF THE PEACE

Appointing staff justices of the peace

50          When appointing a staff justice of the peace, the Lieutenant Governor in Council may appoint only a civil servant.

Powers and duties

51          A staff justice of the peace has jurisdiction throughout Manitoba to exercise the powers and perform the duties specified in the regulations, such as

(a) swearing informations with respect to offences under the Criminal Code (Canada) or other Acts;

(b) setting hearing dates;

(c) issuing subpoenas;

(d) swearing oaths, affidavits and declarations; and

(e) issuing orders to discharge persons from custody.

Salary and benefits

52          As a civil servant, a staff justice of the peace is entitled to be paid the salary, pension benefits, vacation leave, sick leave, disability benefits, and other benefits and expenses that are provided to civil servants in accordance with the applicable collective agreement.

Revoking an appointment

53          The appointment of a staff justice of the peace must be revoked if

(a) the person ceases to be a civil servant or to perform the duties of a staff justice of the peace; or

(b) the employing authority, after consulting with the Chief Judge, recommends to the minister that the appointment be revoked.

COMMUNITY JUSTICES OF THE PEACE

Appointing community justices of the peace

54(1)       When appointing a community justice of the peace, the Lieutenant Governor in Council may appoint only a person who has been recommended by the Chief Judge in accordance with the process set out in the regulations.

Area to be served

54(2)       The appointment must specify the area of the province in which the person is to serve.

Residence requirement

55          Once appointed, a community justice of the peace must reside in the area that the Lieutenant Governor in Council directs.

Powers and duties

56          A community justice of the peace has jurisdiction throughout Manitoba to exercise the powers and perform the duties specified in the regulations, such as

(a) swearing informations with respect to offences under the Criminal Code (Canada) or other Acts;

(b) setting hearing dates;

(c) issuing subpoenas; and

(d) swearing oaths, affidavits and declarations.

Remuneration

57          A community justice of the peace is entitled to be paid remuneration and expenses in accordance with the regulations.

Revoking an appointment

58          The appointment of a community justice of the peace must be revoked if the Chief Judge recommends to the minister that the appointment be revoked for any reason, including the following:

(a) the community justice of the peace has moved outside the area in which he or she was directed to live;

(b) the Chief Judge is of the opinion that the community justice is not adequately carrying out his or her responsibilities or is no longer suitable to be a justice of the peace;

(c) the Chief Judge is of the opinion that  there is no longer a need for a community justice in the area for which he or she was appointed.

GENERAL MATTERS AFFECTING ALL JUSTICES OF THE PEACE

Oaths

59          Every justice of the peace must take and subscribe an oath or affirmation of allegiance and an oath or affirmation of office, in accordance with section 4, with necessary changes.

Resignation

60          A justice of the peace may resign from office by delivering a signed letter of resignation to the Chief Judge, who must then deliver it to the minister.

PART VI

COMPLAINTS ABOUT JUDICIAL JUSTICES

OF THE PEACE

Definitions

61          The following definitions apply in this Part.

"hearing judge" means the Court of Queen's Bench judge designated to adjudicate a charge under subsection 65(1). (« juge chargé de l'audience »)

"incapacity" and "misconduct" have the same meaning as in section 27, but with respect to a judicial justice of the peace. (« incapacité » et « inconduite »)

COMPLAINTS

Complaints

62(1)       Any person may make a complaint to the Chief Judge alleging misconduct or incapacity of a judicial justice of the peace, and the complaint must be dealt with in accordance with this Part.

Form of complaint

62(2)       A complaint must be in writing and signed by the complainant.

Assistance to public

62(3)       Upon request, the administrator must arrange for assistance to be provided to any person in the preparation of a complaint.

Chief Judge or designate to deal with complaint

63(1)       Upon receiving a complaint, the Chief Judge may deal with it personally or designate another judge to deal with it.  If another judge is designated, he or she has the same powers to deal with the complaint as the Chief Judge.

Notice to subject of complaint

63(2)       Within seven days after receiving the complaint, the Chief Judge must give a copy of it to the judicial justice of the peace who is the subject of the complaint, and inform him or her whether the Chief Judge or a designate will deal with it.

INVESTIGATION BY CHIEF JUDGE OR DESIGNATE

Same investigative process as for judges

64(1)       The Chief Judge or designate must deal with a complaint alleging misconduct or incapacity of a judicial justice of the peace in the same way that a complaint against a judge is dealt with under Part IV.

Provisions of Part IV that apply

64(2)       Sections 29 to 36 of Part IV apply, with necessary changes, to a complaint under this Part, except that if a charge of misconduct or incapacity is formulated against a judicial justice of the peace, the board must lay the charge before the Court of Queen's Bench rather than before the council, and must advise the Chief Justice of the Queen's Bench of the charge.

ADJUDICATION BY COURT OF QUEEN'S BENCH JUDGE

Designating hearing judge to adjudicate charge

65(1)       Upon being advised under subsection 64(2) of a charge of misconduct or incapacity against a judicial justice of the peace, the Chief Justice must designate a judge of the Court of Queen's Bench ("hearing judge") to adjudicate the charge.

Hearing judge not to be board member

65(2)       The hearing judge must not be the judge designated by the Chief Justice as a member of the board.

Powers of hearing judge

65(3)       When holding a hearing to adjudicate a charge against a judicial justice of the peace, the hearing judge has the same powers that the council has when it adjudicates a charge against a judge.  Subsections 37(13) (engaging counsel) and (14) (Evidence Act powers) apply and not the rules of court.

Notice of hearing

66          At least 30 days before the date of the hearing, the hearing judge must give the judicial justice of the peace and the chairperson of the board a notice of the hearing that states

(a) the date, time and place of the hearing; and

(b) the particulars of the charge against the judicial justice of the peace.

Same adjudication process as for judges

67(1)       The board has conduct of the proceedings and must present the case before the hearing judge in the same way as a case relating to a judge is presented under Part IV, except that under this Part the case is to be presented to the hearing judge rather than the council.

Provisions of Part IV that apply

67(2)       Subsections 39(5) to (11) and sections 39.1 to 39.5 of Part IV apply, with necessary changes, to the adjudication of a charge relating to a judicial justice of the peace.

APPEAL

Appeal to Court of Appeal

68          Section 39.6 (appeal to Court of Appeal) applies, with necessary changes, in respect of a decision by a hearing judge on a charge relating to a judicial justice of the peace.

OTHER MATTERS

Other matters relating to complaints

69(1)       The following provisions of Part IV apply, with necessary changes, in respect of complaints and their investigation and adjudication under this Part:

(a) section 38 (appointing an administrator);

(b) section 39.8 (public information about complaint process);

(c) section 39.9 (annual reports), except that the reference to the council in that section is to be read as a reference to the hearing judge;

(d) section 39.10 (giving notices).

Administrator

69(2)       An administrator appointed for the purposes of this Part may be the same person who is appointed as administrator under section 38.

PART VII

GENERAL

Order in court

70          Every judge and justice of the peace has the same power and authority to preserve order in the court in which he or she presides as may be exercised by a judge of the Court of Queen's Bench.

Exemption from liability

71          Except as provided in this Act, no action shall lie or be instituted against a judge or justice of the peace for any act done by him or her in the execution of a duty unless the act was done maliciously and without reasonable and probable cause.

Partisan political activities forbidden

72          No judge or judicial justice of the peace shall engage in partisan political activities in any manner whatever.

Extension of time for translation

73          Despite this or any other Act, for the purpose of allowing time for translating from French into English or from English into French a document that is filed in the court or served on a party in a proceeding, a judge or a justice of the peace may extend the time within which

(a) a further document is required to be filed in response; or

(b) a proceeding is required to be taken under an Act.

Remitting fines, surcharges and costs

74          All fines, surcharges and costs collected by a judge or justice of the peace must be remitted without delay to the Minister of Finance or to whomever they are lawfully payable.

Regulations

75          The Lieutenant Governor in Council may make regulations

(a) respecting records to be kept by judges and justices of the peace, and the safekeeping, inspection and maintenance of documents and records;

(b) prescribing seals for use by the Provincial Court;

(c) specifying jurisdictions for the purpose of clause 37(2)(a);

(d) for the purpose of subsection 48(1), setting the percentage of the salary paid to a judge to which a judicial justice of the peace is entitled as a salary;

(e) establishing a process for appointing community justices of the peace, which must include

(i) establishing a nominating committee that recommends qualified candidates to the Chief Judge, and

(ii) setting out the duties of the nominating committee;

(f)  prescribing the remuneration and expenses to be paid to a community justice of the peace;

(g) respecting the duties to be performed and the powers that may be exercised by judicial justices of the peace, staff justices of the peace and community justices of the peace and, with respect to judicial justices of the peace, specifying those duties and powers that must not be performed despite any enactment;

(h) establishing the number of judicial justices of the peace for the province;

(i) respecting additional transitional provisions;

(j) respecting any matter necessary or advisable to carry out the purpose of this Act.

TRANSITIONAL PROVISIONS

Transitional re magistrates and justices of the peace

10(1)       The Lieutenant Governor in Council, on the recommendation of the minister, may appoint a person who, on the day before the coming into force of this section, held office as a justice of the peace or magistrate as

(a) a judicial justice of the peace;

(b) a staff justice of the peace; or

(c) a community justice of the peace;

under Part V of The Provincial Court Act as enacted by this Act.

If not appointed under subsection (1)

10(2)       If a person who held office as a justice of the peace or magistrate on the day before the coming into force of this section is not appointed under subsection (1), he or she has no authority as a justice of the peace or magistrate and is not entitled to any remuneration.

CONSEQUENTIAL AMENDMENTS

"Magistrate" struck out

11          In the following Acts, "magistrate", with necessary grammatical and other modifications, is struck out wherever it occurs in the identified provisions and their section headings:

(a) The Child and Family Services Act, C.C.S.M. c. C80, in subsections 21(3), 27(1), 29(1) and (2) and 53(2);

(b) The Court of Queen's Bench Small Claims Practices Act, C.C.S.M. c. C285, in clause 3(4)(f);

(c) The Manitoba Evidence Act, C.C.S.M. c. E150,

(i) in the French version of subsection 27(3), and

(ii) in clauses 62(1)(d) and 63(1)(b);

(d) The Hotel Keepers Act, C.C.S.M. c. H150, in section 5;

(e) The Jury Act, C.C.S.M. c. J30, in clause 3(f);

(f) The Ombudsman Act, C.C.S.M. c. O45, in clause 18(b);

(g) The Powers of Attorney Act, C.C.S.M. c. P97, in clause 11(1)(c);

(h) The Manitoba Public Insurance Corporation Act, C.C.S.M. c. P215, in subsection 59(3);

(i) The Public Schools Act, C.C.S.M. c. P250, in subsection 258(1);

(j) The Summary Convictions Act, C.C.S.M. c. S230, in section 1, in the definition "justice";

(k) The Wildlife Act, C.C.S.M. c. W130, in the part of section 76 after clause (b), and in section 79.

"Justice" substituted for "magistrate"

12          In the following Acts, "magistrate", with necessary grammatical and other modifications, is struck out wherever it occurs in the identified provisions and their section headings and "justice" is substituted, with necessary grammatical and other modifications:

(a) The Construction Industry Wages Act, C.C.S.M. c. C190, in subsection 18(1);

(b) The Gasoline Tax Act, C.C.S.M. c. G40, in subsections 30(6) and (7);

(c) The Marriage Act, C.C.S.M. c. M50, in subsection 19(3);

(d) The Motive Fuel Tax Act, C.C.S.M. c. M220, in subsections 29(3) and (4);

(e) The Public Health Act, C.C.S.M. c. P210, in subsection 19(6);

(f) The Real Estate Brokers Act, C.C.S.M. c. R20, in clause 36(b);

(g) The Retail Sales Tax Act, C.C.S.M. c. R130, in the part of subsection 24(6) after clause (c);

(h) The Taxicab Act, C.C.S.M. c. T10, in subsections 4(3), (4) and (5).

C.C.S.M. c. D93 amended

13(1)       The Domestic Violence and Stalking Prevention, Protection and Compensation Act is amended by this section.

13(2)       The definition "designated justice of the peace" in section 1 is replaced with the following:

"designated justice of the peace" means a justice of the peace appointed under The Provincial Court Act who, by regulations made under that Act, has been given powers and duties under this Act; (« juge de paix désigné »)

13(3)       Section 3 is replaced with the following:

Authority

3           A designated justice of the peace may hear and determine applications for protection orders under this Act.

C.C.S.M. c. F20 amended

14          The definition "justice" in subsection 57.2(1) of The Family Maintenance Act is amended by striking out "magistrate" and substituting "justice of the peace".

C.C.S.M. c. F150 amended

15          Section 36 of The Forest Act is amended by striking out "magistrate or justice of the peace" and substituting "justice".

C.C.S.M. c. F175 amended

16(1)       The Freedom of Information and Protection of Privacy Act is amended by this section.

16(2)       The definition "judicial administration record" in section 1 is amended

(a) in the part before clause (a), by striking out ", magistrate"; and

(b) in clause (e), by striking out "established" and substituting "or a hearing judge".

16(3)       Clause 4(a) is amended by striking out ", magistrate".

C.C.S.M. c. H60 amended

17(1)       The Highway Traffic Act is amended by this section.

17(2)       In subsections 151(3) to (7), "magistrate" is struck out wherever it occurs and "justice" is substituted.

17(3)       In subsection 242.1(4), "justice designated by The Chief Judge of the Provincial Court of Manitoba" is struck out and "justice" is substituted.

17(4)       In subsections 242.2(10) and 242.3(12), "justice designated by The Chief Judge of the Provincial Court of Manitoba" is struck out and "justice" is substituted.

17(5)       In clause 267(b), "magistrate" is struck out and "judge or justice" is substituted.

C.C.S.M. c. I80 amended

18          The Schedule of The Interpretation Act is amended

(a) in the definition "justice", by striking out "a magistrate and"; and

(b) by repealing the definition "magistrate".

C.C.S.M. c. L110 amended

19          Section 14 of The Legislative Assembly Act is amended by striking out ", magistrate or part-time provincial judge" wherever it occurs.

C.C.S.M. c. N100 amended

20           Section 2 of The Northern Affairs Act is amended

(a) by striking out ""justice" or "justice of the peace","; and

(b) by striking out ""magistrate",".

C.C.S.M. c. P230 amended

21(1)       The Public Officers Act is amended by this section.

21(2)       Section 5 is amended by striking out "justices of the peace,".

21(3)       Subsection 21(3) is amended by striking out "justice of the peace or a magistrate" and substituting "justice".

C.C.S.M. c. S50 amended

22          Subsection 151(1) of The Securities Act is amended

(a) by striking out "magistrate or" wherever it occurs above and below the form; and

(b) in the form,

(i) by striking out "19" and substituting "20", and

(ii) by striking out "Magistrate" and substituting "a Provincial Court Judge".

REPEAL AND COMING INTO FORCE

Repeal of S.M. 1997, c. 42

23          The Provincial Court Amendment and Consequential Amendments Act, S.M. 1997, c. 42, other than sections 7 to 17, is repealed.

Coming into force

24          This Act comes into force on a day fixed by proclamation.