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I 1/ ■)^V \ . 7 '^^ i \fJS THE INFERIOR MAGISTRATES -OR- LEGAL PLURALISM IN ONTARIO Previous to tli(^ '^otli Marcli, 1886, b}^ the Statute Law of Ontario, no person could be a Police Magistrate, or Justice of the Peace, during the time he continiuMl to practice as an Attorn(\y or Solicitor, in any Court whatever : except such l)ractising Attorney or SoHcitor was at tlie same time a meml)er of Her Majesty's Executive Council, or a Judge of any of the Supreme Courts of Law or Eipiity, or a County Judge, or Her Majesty's Attorney General, or one of Her Majesty's Counsel in the Law, or a Mayor, Alderman, Reeve, or Deputy-Reeve of any Municipality. [R. S. O. c. 71, s. s. 5, 22 and c. 72, s. 4.] In Tlie Laic Journal, of September 1st, 1885, appeared a letter by the author, on the dis(iualifications of Police Magis- trates and Justices of the Peace, followed in the succeeding number byfiu'ther correspondence from other lawyers. On the 22nd March appeared the first edition of this essay. The Toronto Globe, of the 27th March, says, referring to this open essay : — "Almost simultaneously with the appearance "■ of Mr. Wicksteed's letter, the grievance, of which he justly " complained, ceased in a great measure to exist. By a clause " in Mr. Mowat's bill for further improving the law, passed at " the late session of the Legislature, it is provided that no V ' ' Police Magistrate, and no })artner or clerk of any Police "Magistrate, shall act as Agent, Solicitor or Counsel in any " cause, matter, prosecution or proceeding of a criminal nature, " or in any case wliich may be investigated or tried before a " Magistrate or Justice of the Peace." But the Globe did not tell its subscribers that the principle of which I complained does still exist, and that in an aggravated form,— thanks to An Act for Further Improving the Lair, (1886). What I complained of was that in Ontario, while generally speaking, no Attorney or Solicitor could be a Justice of the Peace : yet there were exce])tions to this rule, whereas there ought to be none. Now, to further improre the law on this point, Mr. Mowat, expressly enacts, 49 V., c. 16, s. 18, that any Attorney or Solicitor who is a Police Magistrate, shall be an exception to the wholesome rule I want to make universal. A Police Magistrate, in tlie eyes of the law is nothing but two Justices of the Peace rolled into one, who is paid to see, among other things, that the by-laws of his city or town are kept inviolate. Tills absurdity now exists, therefore, under the Ontario Statutes, viz., that a practising Attorney or Solicitor cannot be a Justice of the Peace, but he may hold the office and do the duties of two Justices of the Peace. Ontario says it would be inconvenient, (using the euphonious expression of an English Chancellor speaking on this point) to allow a practising Attorney to act as a Justice of the Peace, who, in most cases, would be coupled with a layman Avho would counteract the obvious inconvenience. But it is an improvement in the law to appoint a practising Attorney to be a Police Magistrate, who is a Corporation sole, representing and having the powers of a Bench of Justices, whose inconvenient tendencies to benefit his own practice at the expense of the blind goddess whose servant he ought to be, are uncontrolled by partnership with a man or men not so tempted. ^^ mt ^5 mt It is all the more important to preserve, without exception, the (lolden Rule, that no practising- Attcjrney shall be a Justice of tlie Peace or Police ^Magistrate, in view of " the dangerous increase of summary juiisilictiou," as Samuel Warren calls it. We ask is there any reason for these exceptions? Why strongly har the gate, and yet remove some of the palings from the fence c«mnected with it? Why allow a wolf to enter the fold of the Juiliciary, because he can clothe himself in the sheepskin of anyone of several oMces? The rule is a good one, the reason for it is good ; vvliy defeat its object by exceptiinis directly opposed to the law of the leading countries in the world ? Why does Ontario alone retain this unjust and impolitic plu- rality of employments under the guise of exceptions ? Let us examine : 1st — The laws and jurisprudence of various coun- tries on the subject of the (puilitications of Judges and Justices of the Peace ; and 2nd — Consider the reasons whicli actuated their Legislators, Judges and Jurisconsults in framing sucli enactments, rendering such decisions, or holding such oi)inions. In England or Wales no person shall be cai)[ible of Ijecom- ing or being a Justice of tlie Peace for any county in which he shall practice and carry on the profession or business of an Attorney, Solicitor, etc. (84-35 Vict., 1871, c. 18). The same disqualification for stipendiary magistrates (see 2() and 27 Vict. , c. 97). It is true that by 18 Geo, 2, c. 20 (Imp.) there are per- sons excepted from the general rule of 5 Geo. 2, c. 18, by which latter Act Attorneys in England are incapacitated from being Justices of the Peace so long as they continue in the business and practice of an Attorney — but the persons are either those who could not by any possibility be Attorneys, or if Attorneys, could not find time or opportunity to act as Jus- tices of the Peace. In Scotland, under 19 and 20 Vict., c. 48, sec. 4: "Any Writer, Attorney, Procurator or Solicitor who may be elected to the office of Magistrate or Dean of Guild of ««;^ I any Burgh, tho Magistrates or Dean of (iuild of which are ex offioiis Justices of tlie Peace by virtue of their election to such offices, shall, so long as he liokls any such oftice. he entitled to act as a Justice of the Peace, provided he intimates to the Clerk of the Peace for the County, in which any such Burgh is situ- ated, that he and any partner or partners in husin-'ss with him cease to practise before any Justice of the Peace C'ourt in such county, so long as he continues to hold such office as aforesaid ; and it shall not be lawful for him or them thereafter, and during his continuance in office so to practise. By the laws of France, the functions of a Justice of the Peace are incompatible with those of a Mayor, Prefect and Sub-Prefect, Councillor of the Prefecture, Councillor at the Royal Court, Bailiff, any employee in the C/Ustoms. Post Office, Public Accountant. Ecclesiastic, Notary, Advocate, and paid Teacher. If tlie person who has been appointed a Justice of the Peace is engaged in inconipatii)le enii)loyment, or duties, he is obliged to give up such employment or duties within ten days from notice of his appointment, under j'ain of having his appointment revoked. It is true that in France these Justices are salaried — but so are our Police Magistrates — and it might be better to increase the fees of the Justices of the Peace if they were deprived of holding incompatilde offices as they are in France. (See Bioche, Dicti(jnnaire a ol. 4.)" In the United States of America, Justices of the Peace are elected by the people for four years, and they may be removed in due manner by those who elected them. In this way all malversations of office or other irregularities ai'e easilv cured and remedied. This four years' probation in office is a very useful provision, for "we must not, upon supposition only, admit judges deficient in their office, for so they would never do right : nor on the other side, must we admit them unerring in their judgment, for so they would never do anything w^rong." (See Coventry & Hughes' Digest, p. 833.) J \ i «,l I 1* Let us now consider the reasons whicli nrtiiatecl tli»' fram- ers of the forej^oin;; enactnieiit>. Why is tlie eumulalion of employment forliiibU'n under iill free .i;overnuirnts V Tlie gen- eral reason ajiipl()ynients in tlic hands. of a single person is thattliismono^xdy is unjust and impoHtie. By heaj)in^ ujum a small number of persons the ohjeets of general desire, you deprive so many individuals of a portion of enjoyment, and you take away from i)ul)lic competition so numy rewards whieh might bea]>[)lieahle to the encouragement of true merit. Heap three j)()rtions upon a privileged favorite, you do not triple the enjoyment which each i)ortion separately would have given him ; and above all you are very far from producing the same amount of satisfaction as if you had ad- mitted three persons to a share in the division. But there aie more conclusive reasons agjiinst uniting any other employment with that of the Judge. 1st — The good of the public service. The obligation to attend daily at the Court or Chambers is incompatible with any other jmblic duty. If he is not always engaged as a Judge, it is necessary that he should always be ready so to act. Give him other duties, the parties Jire exposed to delays, and justice to the frittering away of evidence. If your Judges have ])lenty of time for other business, they are too numerous or their jurisdiction is too limited ; you may learn from this that your judicial establishment is on too ex- travagant a scale. When the cumulation of two em[)loynients is permitted, of which either is suiUcient to occupy the time of a single individual, the law ought to explain and set forth which of the two does it intend that the duties shall be ne- glected. 2nd — The danger to uprightness or the reputation fo^* uprightness. All emi)loyments entail a diversity of social relations and combinations of interests ; all connections are sources of partiality. It is possible that the probity of a Judge might not suffer from these things, but his reputation might 6* suffer and the confidenoe in his judgments will be weakened. (See Benthain, Organisation Judiciaire.) "In Jure non debet fieri aeeeptio personam in," and "A good Judge slioidd do notbing from his own arbitrary will, or from the dictates of his private wishes ; but he should i)ro- nounce according to law and Justice." — {Coke.) " Le devoir d'lni Jugeconsis^e a rendre la Justice sans avoir egard aaucune recommandation, &c/'— (Ferriere Diet. vo. Juge.) Plato writes : — "A Judge sits in the Judgment Seat, not to administer laws !)y favor, but to decide by fairness ; and he has taken an oath that he will not gratify his friends, but determine with a strict regard to law." Drydeu sings ; — " My secret wishes would my clioice ilecide : But open .justice bends to neither side." Samuel Warren, in his law studies, very truly observes : — " Justices of the Peace, in almost all cases, are (dothed with power to hear and dc^terniine — combining in themselves the several powers of a Judge, a Jury and Court of Equity : and the manner in which their arduous duties are discharged, is watched by the public with unfaltering vigilance — supi)lying a pov/erful stimulus to a zealous and able exercise of their important functions." Would it not be well if the Provincial Government w^ere to exercise more discretion in the selection of men to fill this impoi'tant office, whose Jurisdiction has, in late years, been extended very far beyond the bounds originally assigned to it. and adhered to for centuries ? Would it not be well also if the persons nominated to this office w^ere to examine themselves, before accepting, in order to ascertain if they are acquainted with the duties of a Judge, and if they are prepared to carry them out in the high minded manner advocated by the old Jurisconsult Pigeau in his Procedure Civile ? [Vol. 1 p. 361] : — i# f '• The JiidgeH are the mouthi)iece8 of tlie laws : Uke theiii^ they ou^lit to punish and ^)ardon, without lovin*; or hatin<^ : Hke them tliey ou^lit to he inaccessihle to every feelinjz; not in accord with those of rif?in j^^^consult taken ^om^ ^^ ^ fr;t'-"S L^SoTc^ sJ^rai virtues inthe same judge is the result of ^^^.^^^ ^.^^^^ individual. ^^^ layB claim to tm k ^^^^^^j "^n'^ rS PO sees a rectitude of h^^*^^^ fi^„ess, ought not only to po ^^^1, an mimo integrity, ^-* -;;;:;i h a universal P-^^^^^^auct which ^th're'TprS:!:^ ^ahits, to pre-v- ^^^^^^^ :Ka-^^-trre":s:^^^^-^r ri^^ctse of a private citizen, as a me^ ^^^'^^^f !„,"ldndifferent. ^ . ' The people ««^""' ^^e, obedience is compie ---r'aSt--^^ r'^zir^^ -^^^^-^^^' i ft general , ^"^ , r,-^ «nfth by earning ^° - only --iSrUroadiaU-n^*,, ^^ .^^,,,,, ^hich is only bestow ^^ ^^^ ^f "1 those also of the- "^''°'' to toi qualities of the heart, thos ought to jom to these q V* ■ i \ 1 i intellect, in order to acquire a c<)in|)lete knowledge of everything connected with his o(Hce. He ought to make use of it in per- forming liis (hities, to wliicli lie cannot