JPs and their qualifications.

• Author: Seebaran, Mark
• Position: Criminal law

Does common sense still have a place in criminal law? Are lawyers the only people qualified to judge their fellow citizen? How can non-lawyer Justices of the Peace provide fair justice? The Supreme Court's decision in Ell v. Alberta 2003 stirs up these questions.

Ell upheld Alberta legislation that established an independent council which, in turn, set a minimum requirement of five years at the Bar for all sitting JPs (i.e. those who conduct bail hearings and. grant search warrants). You can no longer do this work in Alberta unless you graduate from law school, pass bar exams, and acquire five years of related experience. These requirements ensure that JPs have similar backgrounds to judges, who often must have ten years of membership at the Bar, before qualifying for appointment.

Dramatically, these requirements (Justice Statutes Amendment Act, 1998) apply retroactively. As a result, hundreds of Alberta JPs who, like most of their colleagues throughout Canada, are not lawyers, saw themselves removed from office and reassigned to desk duties that involved less legal reasoning. Ell came about when a group of those affected argued the Alberta legislation compromised the independence of their office. If the state could remove JPs for lack of an education which, at their age, they could not expect to obtain, would any future JP decide matters independently, without fear of removal?

Justice Major acknowledged the principle of judicial independence protects both individual JPs and their courts from arbitrary removal. Nevertheless, "the principle exists for the benefit of the judged, not the judges ... not as an end in itself, but as a means to safeguard our constitutional order and to maintain public confidence in the administration of justice."

Ultimately, the Supreme Court found that stronger educational requirements improve judicial independence: "Increased training .. reduces the reliance of individual officers on the advice of others, thereby increasing their independence in decision making." Moreover, since the JPs in Ell could not meet these requirements swiftly, their removal "cannot be said to be arbitrary." "Because justices of the peace ... may hold office for many years, a solution which did not affect those presently appointed would have no appreciable impact for a very long time."

Justices of the Peace have a long tradition as the citizen's representative on the bench. Unlike academic judges, who may have studied or practised...