The Association of Justices of the Peace of Ontario

History of Justices of the Peace

The Origins in England

The office of justice of the peace extends back over 650 years to 1340 when knights in each shire in England were appointed to guard against crimes being committed at home while he fought his overseas wars. Thus the office began as keeper of the peace rather than justice of the peace. These keepers of the peace were the first “police force”.

The keepers of the peace remained active for over a century until domestic chaos and social disintegration caused by the Hundred Years War and the Black Death rendered local law enforcement unsatisfactory.

As a result, the Justice of the Peace Act was promulgated in 1361 by Edward III. The Act called for the appointing of “one lord and with him three or four of the most worthy in the country, some learned in the law … to pursue, arrest, take and chastise them according to their trespass and offence … and also to hear and determine at the King's suit all manner of felonies and trespasses ... according to the laws and customs aforesaid.”

This Act made the justices of the peace virtual rulers of most of rural England since they operated as police in pursuing and arresting criminals and as both criminal and civil courts in trying the vast majority of cases. They were not permitted to try the most serious cases, but were charged with making sure the accused appeared for trial when one of the King’s travelling courts arrived and that the person commit no further crimes until the trial. Thus, these justices were also jailers.

In 1439, the phrase “most worthy” was considered too vague, so the Act was amended to require a justice to own property in the county in which he was to be appointed which brought in at least 20 pounds income per year, or be “learned in law”. The property requirement was increased over the years until 1906, when all property requirements were abolished.

Down through the centuries the office of justice of the peace remained essentially the same, although there were refinements of their role. By about the middle of the eighteenth century, the judicial function of the justice depended on a number of factors.

A single justice could try many minor criminal offences such as vagrancy or absence from church; he or she could hold what are now called preliminary inquiries in order to determine whether to commit an accused for trial. Two justices sitting together had wider powers to hear more serious offences. The powers of the justices also depended upon whether any one of them or more were “learned in the law”. If this were the case, even wider jurisdiction was given.

In 1848, the office of the justice of the peace underwent a fundamental change. The office was stripped of its roles in supervising police and in prosecutions and became a solely judicial and administrative one. In 1881, the bulk of the justices’ administrative authority was transferred to the borough councils and mainly judicial power remained. 

The Justice of the Peace in Canada

The office of justice of the peace was transplanted from England to Canada in 1763 as a result of the Royal Proclamation of 1763, which decreed that the law of England, both civil and criminal, was to be imposed upon all the territory of what subsequently became Canada.

In 1800, the legislature of Upper Canada adopted the criminal law of England as it stood in September 7, 1792. As of that date, justices of the peace in England had enormously wide jurisdiction, ranging up to the trial of all felony and misdemeanours, with a few exceptions, and some appellate jurisdiction.

In 1842, qualifications for a justice of the peace in the Province of Canada were established. Justices were to be “the most sufficient persons” owning a minimum of 300 pounds in property. In 1846 an exception was made for justices appointed for areas not falling within distinct divisions. This was the first sign that it was not always possible in the conditions existing in Canada to simply adopt the English system. With Confederation in 1867 and the British North America Act, two levels of government, federal and provincial, were established. Section 92(14) gave the provinces the power to appoint and set qualifications for justices of the peace.

By this time, a new judicial officer had appeared – the magistrate, the forerunner of today's provincial judge. This officer assumed many of the powers and functions previously exercised by justices of the peace. In 1868, the powers of justices of the peace were limited in towns where there were police magistrates. The number of magistrates increased over the years, reducing the trial responsibilities of justices of the peace. In recent years, however, justices of the peace in Ontario have assumed more and more trial responsibilities; today the vast majority of trials of regulatory offences are presided over by a justice of the peace.

In 1952, the Justices of the Peace Act was re-enacted and there have been substantial amendments since that time, recognizing the importance of the role of the justice of the peace. In 1977, the Act was amended to provide that all justices of the peace had jurisdiction throughout Ontario, rather than only for the county for which the justice was appointed.

The Justices of the Peace Act, 1989 To Today

This Act was in turn repealed when the Justices of the Peace Act, 1989 was enacted.  That legislation grew from a report that was prepared earlier that decade by Professor Alan Mewitt at the request of the then Attorney General, R. Roy McMurtry.

In August, 1990, Senior Judge Gerald S. Lapkin was formally appointed the Co-ordinator of Justices of the Peace and the Office of the Co-ordinator was established. In addition, the Justices of the Peace Review Council was established to recommend appointments of justices of the peace and handle complaints about a justice of the peace.

At the same time, amendments to the Courts of Justice Act combined the Provincial Court (Criminal Division), Provincial Court (Family Division), and Provincial Offences Court into the Ontario Court, Provincial Division (now the Ontario Court of Justice). In addition, the province was divided into eight judicial regions, each of which is presided over by Regional Senior Justice. Shortly afterwards, a Regional Senior Justice of the Peace was also appointed for each region. Prior to that, in 1984, His Worship Ralph Faulkner had been appointed the Supervising Justice of the Peace for Toronto.

The final implementation of the Justices of the Peace Act was completed with the conversion of the justices of the peace who were paid by fees to salaried positions, either full-time or a percentage of a full-time position. A new order-in-council was issued to each justice who had been converted, either as a presiding or non-presiding justice of the peace. Conversion started in August 1994 and was completed August 1, 1995.

The Honourable Marietta Roberts was appointed Associate Chief Justice/Co-ordinator of Justices of the Peace in 1995. When her term ended in 2001, the Honourable Donald A. Ebbs was appointed Associate Chief Justice/Co-ordinator of Justices of the Peace.

In 1996, the position of Senior Advisory Justice of the Peace was established in the Office of the Chief Justice. Her Worship Carolyn Robson held this position from 1996 until 1998, and Her Worship Opal Rosamond held it from 1998 until 2004. His Worship Andrew Clark is the third justice of the peace in this position. Prior to the formal creation of that position, three other justices of the peace also provided services in the Office of the Chief Justice: His Worship Rene Proulx from 1990 – 1992; Her Worship Leslie Brown from 1992 – 1994; and His Worship Inderpaul Chandhoke, from 1994 – 1996. His Worship Richard Le Sarge has been Senior Justice of the Peace Responsible for the Ontario Native Justice of the Peace Program since 1994.

In 2002, the Justices of the Peace Act was amended to require the Co-ordinator to develop an education plan, and implement it on approval of the Justices of the Peace Review Council.

The most significant change since conversion to a salaried bench has been the gradual transition to a bench that is composed primarily of full-time presiding justices of the peace. Prior to conversion, the majority of justices of the peace were part-time and non-presiding. Today, over 80 percent are presiding and perform their duties on a full-time basis.

In October, 2005, amendments to the Justices of the Peace Act were introduced in the Legislative Assembly. These changes provide for, among other things:

  • allow retired justices of the peace to provide services on a per diem basis
  • formally recognize the position of the Regional Senior Justices of the Peace
  • require all future appointments to be full-time and presiding
  • set minimum qualifications for appointment
  • recognize equivalencies for candidates who do not meet the minimum qualifications;
  • establish a Justices of the Peace Appointments Advisory Committee
  • allow the Attorney General to recommend the appointment only of candidates who have been classified as “qualified” or “highly qualified” by the Committee and
  •  
  • give the Justices of the Peace Review Council the authority to conduct formal hearings into a complaint against a justice of the peace.

Excerpted from an article by S. Rosalind Baker and Shelley Howell, Research Counsel  for the Centre for Judicial Research

For further study, History of the Justices of the Peace, by Sir Thomas Skyrme, Barry Rose Publishers, is highly recommended. This three volume work traces the history of the Justices of the Peace from 1195AD in England to the present day roles in England and numerous other countries.