Loading...
HomeMy WebLinkAboutCLD-018-06 B Cl!Jlpn REPORT CLERK'S DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: SEPTEMER 18 2006 Report #: CLD-018-06 File #: By-law #: 6 P!1- 3'1'5 - Ob Subject: SHORTAGE OF JUSTICES OF THE PEACE WITHIN DURHAM REGION RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report CLD-018-06 be received for information. Submitted by: d~~ PLB*LC Reviewed by: Franklin Wu, Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T 905-623-3379 F 905-623-6506 .... , , REPORT NO.:CLO-018-06 PAGE2of8 OVERVIEW At the regular meeting of Council held on September 11, 2006 Council passed the following Resolution: WHEREAS there is a shortage of Justices of the Peace in Durham Region; and WHEREAS matters are being dismissed by the Courts as a result of this shortage, thus negatively impacting the law enforcement process in Clarington, NOW THEREFORE BE IT RESOLVED THAT correspondence be issued to the Attorney General and the Premier of Ontario requesting additional Justices of the Peace to be appointed to the Courts in the Region of Durham; and THAT a copy of the correspondence be forwarded to Mr. Brian Roy, Solicitor, Region of Durham, Mr. John O'Toole, MPP, The Association of Municipal Clerk's and Treasurers of Ontario, the municipalities within Durham Region, and the Regional Senior Justice. In order to assist Council in understanding the nature and scope of the situation staff have prepared an overview of the Ontario court system follows. The court system in Ontario is broken down into Criminal and civil jurisdictions. Included in the Criminal jurisdictions are all Provincial and municipal enforcement matters. Within Durham Region, all provincial and municipal offence issues are handled through the Provincial Offences Courts at 605 Rossland Road in Whitby. Each year the Court Administration assigns certain days and times slots or "tiers" to each municipality for charges which have been laid by that municipality. Each tier is 2 hours long. These tier assignments are based on the Court Administration's assessment of the anticipated time needs for each Municipality. ........... '-. The court house at 605 Rossland has three Provincial Offences courts in regular use. One is assigned to the Ministry of the Attorney General and other Provincial agencies, one is for the Region and the police and the third is for the Municipalities within the Region to use for by-law prosecutions. Justices of the Peace are the presiding court officials in each of these courts. In addition, a Justice of the Peace is required for Provincial Offences Intake (receiving and swearing in charges and other court documents) and a separate court which deals exclusively with adjournment matters, cases that have to be put over to another day for preliminary REPORT NO.:CLD-018-06 PAGE 3 OF 8 Hearings, Disclosure of information or other reasons. Currently there are only three Justices of the Peace assigned to the Whitby court to cover all these functions. Justices are also required at 242 King Street in Oshawa for Criminal Court Intake, Criminal First Attendance Court, Bail Hearings and assignment to the Telewarrant Centre in Newmarket. The Whitby court is part of the Central East Region. This court region stretches from Collingwood through Barrie and Newmarket to Huntsville and south to Brighton then west to Whitby. Ideally this court region is to be serviced by a minimum of 54 Justices of the Peace. There are currently 43, of which one was hired in June and two more were announced at the end of August. As the training period for new Justices is approximately one year, these people therefore, will not be finished their training and available for court until next summer at the earliest. THE CHARGE PROCESS When a complaint is received it must be assigned to an officer to investigate. Inspections, background information gathering, review and evaluation of the complaint are followed by contact with the subject of the complaint, otten by correspondence. The subject is advised of the nature of the problem and given an opportunity to cease or, if possible, rectify the problem. Further inspections and correspondence will ensue. Once a determination is made to proceed with court action for non-compliance the officer must prepare a charge or charges. The document used to initiate a charge under Part 3 of the Provincial Offences Act is called "an Information" and the process is referred to as "laying an Information". Once the Information and two copies of the Summons are prepared these documents must be presented to a Justice of the Peace at the Provincial Offence Intake office. The documents are reviewed by the Justice of the Peace to determine if all the paperwork is in order and whether or not there are sufficient grounds to support the charge. The officer then REPORT NO.:CLD-018-06 PAGE 4 OF 8 swears an oath that the material contained in the Information is accurate and correct. The Justice signs the Information and the 2 copies of the Summons. The Summons will require the Defendant to appear in court on a specific date and time to answer to the charge. The officer now serves one of the Summons copies on the Defendant, either by himself or through the services of a Process Server. The officer then prepares all his or her documents for court. Some material will require certified copies; further inspections will be required to monitor changes to the situation. A Case History is prepared and all the documents are provided to the Prosecutor. On the assigned date, the officer, the Prosecutor and the Defendant appear in court. The Defendant may elect to plead guilty or may ask for a trial, in which case the matter is put over to another date to be dealt with. The Defendant may also ask for an adjournment to a later date to seek legal counselor request to enter a plea at a later date. If the Defendant pleads guilty the facts in the case are presented to the court by the Prosecutor and a determination of guilt and penalty are made by the Justice of the Peace. If the Defendant requests a trial, the matter is set over to another date and any independent civilian witnesses must be notified to attend. In some circumstances a second means of proceeding is available. If the by-law is one for which short form wordings have been approved by the Senior Regional Justice, then the officer may, at the time of the incident, issue the Defendant a Part 1 ticket with a set fine. The ticket must be issued and delivered to the court within 7 days of the offence. Once issued, the ticket must be served on the Defendant within 30 days. If it has not been served within that time frame the matter dies and cannot be reopened. UNDERLYING CAUSES The courts have suffered through staffing shortages for approximately 20 years. As noted above the Central East Region is currently below its required minimum number of Justices by REPORT NO.:CLD-018-06 PAGE 5 OF 8 14. Justices of the Peace are appointed by the Attorney General. Several years ago the Province placed a freeze on the hiring of new Justices of the Peace while it reviewed and revised the hiring criteria. Over time the shortages have led to backlogs and delays in trials. Until recently the Durham Region courts have managed to operate with few interruptions. In August 2005 Clarington experienced its first incident where there was not a Justice of the Peace available. The Court Clerk read out a prepared statement advising all Defendants and all persons present that the court had elected "not to exercise it's jurisdiction over the Defendants" and that they were free to leave. As a result the Part 1 tickets and Part 2 Parking tickets before the court were lost and could not be pursued further. All Part 3 Informations required the Officer to prepare and swear out another Summons, then have it served on all parties. EFFECTS The court process is never an easy one for any citizen at the best of times; adjournments and delays leave them confused and disheartened. Staff are often contacted by their witnesses and complainants with questions of what is happening and why the process is taking so long. Recent experience has shown that people, Witnesses and Defendants are very upset that they have had to take time off to attend court only to be advised that their matter will not be heard. Defendants are left with a false sense of victory and Witnesses are left feeling betrayed. In the end the anger and despair are often laid on the Municipality's doorstep. Clarington's Prosecutor, Rhonda Bishop has seen this anger and frustration first hand. On June 12th, Ms. Bishop was forced to withdraw 104 Parking Tickets for the City of Pickering because, after waiting for over an hour the Court Clerk advised that the Justice of the Peace was not available for any trials and would only attend to accept withdrawals. The police had to be asked to attend the court and stand by in case there was trouble. REPORT NO.:CLO-o18-06 PAGE 6 OF 8 This experience has set the norm for court since that date for all municipalities in the Region. There are no trials; if a Justice of the Peace is available at all they will only hear guilty pleas, adjournments, set dates or withdrawals. Up until the actual start time of the court tier there is no guarantee that a Justice will even be available for these duties. When they do not appear the Court Clerk is left to announce to that fact to the courtroom. They will then proceed to explain that Defendants may be resummonsed if the prosecution elects to proceed. On average a simple complaint and infraction will take up to 10 hours of an officer's time to investigate, correspond with the subjects and finally prepare material for court. A property standards or zoning charge will typically take upwards of 50 hours of an officer's time and will include several re-inspections. This does not include the time for the Prosecutor to prepare her material for court. To have the cost of those efforts squandered because the Justice of the Peace does not attend the court is unacceptable. Once the court refuses to deal the matter, it becomes necessary to repeat much of the work that has already been done in the hope of being able to proceed one the matters are back in court. OPTIONS There are some options available to staff. The first is to reduce the number of charges we lay. This leaves the public feeling abandoned and frustrated that municipal staff are not doing their jobs. The second option is to implement mediation or encourage both parties to seek professional mediation. This option requires a far greater expenditure of time on the part of staff and would require training in mediation and facilitation. Another option is to use alternative measures to resolve a problem. Staff rarely lay charges for long grass and weeds, snow clearing or property standards. Staff use the authorities in the governing legislation to do the required work and bill the owners, thus removing the need to go to court. The cleanup costs are recovered from the owners and generally act as a deterrent to future problems. REPORT NO.:CLO-018-06 PAGE 7 OF 8 Staff use great discretion in deciding which matters will proceed to court. It is not enough to say that charges will be laid for each complaint received. In every complaint, the investigating officers must ask themselves three simple questions. 1. Does this issue actually constitute an offence in law? (In other words, is there a real offence here which can be prosecuted?) 2. Is there sufficient evidence to prove that the alleged Defendant is guilty? 3. Is there a strong likelihood of obtaining a conviction? It is on the third question that staff must now spend more time. It does not make sense to bring a borderline case to court simply to make one side or the other happy. Staff must review the files more closely now with the additional restrictions on time that this situation has imposed. The matter cannot simply be ignored. As each court date comes up matters that are not dismissed or disappear are being adjourned to later dates creating future log jams for the court when it finally does decide to exercise its jurisdiction. Even matters that are extended and adjourned through this process may be lost because of section 11 (b) of the Canadian Chart of Rights and Freedoms which states: "11. Any person charged with an offence has the right b) to be tried within a reasonable time;" The Supreme Court has interpreted the phrase "reasonable time" to mean 6 months from the date of charging. Matters that drag on longer than that at the request of the Municipality or the court are in jeopardy of being dismissed because the Defendant's rights under section 11 (b) were violated. The Ministry's own website states; REPORT NO.:CLO-018-06 PAGE 8 OF 8 "The government is committed to transforming the justice of the peace appointment process in order to make the system more open and transparent, and to permanently establish appointment standards to ensure that the most qualified candidates are appointed. In September, the Standing Committee on Justice Policy will continue hearings on the Access to Justice Act. The Act would, if passed, ensure a more open and transparent appointment process for justices of the peace and establish minimum qualifications. " As directed by the Resolution quoted earlier, a letter has been forwarded to the Ministry of the Attorney General expressing Council's concern in this matter.