Ontario Justices of the Peace challenge discriminatory mandatory retirement law

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23 July 2007
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On July 23, 2007, the Association of Justices of the Peace of Ontario joined with 3 other individual Justices of the Peace to file a constitutional challenge against the Government of Ontario. The Association is represented by CHSMC counsel, Mary Cornish, Fay Faraday and Jo-Anne Pickel. See Notice of Application.

Although the Government eliminated mandatory retirement for Ontarians with the Ending Mandatory Retirement Statute Law Retirement Act, 2005, calling it a serious human rights violation, the Ontario Government chose to continue to force Justices of the Peace to retire at age 70. This is in contrast to the situation of their judicial partners in the Ontario Court of Justice, Provincial Court Judges who, along with federally appointed Judges, work to age 75, the judicial age of retirement set out in the 1867 Constitution Act.

The Justices contend that section 5.1 (1) 3., 5.1(2) and 5.1(3) and s. 6 of the Justices of the Peace Act, R.S.O. 1990, c.J.4, violates section 15(1) of the Canadian Charter of Rights and Freedoms as unlawful age discrimination and is not saved by section 1 of the Charter. On its face the restriction deprives Justices of the right to continue to work and earn income on the basis of a prohibited ground, namely age which would lead to a section 15(1) violation. The affidavits of the individual Applicant Justices of the Peace make it clear that Justices find this restriction humiliating, offensive and a financial hardship given their inadequate pensions.

The Applicants concede in their application that there should be a mandatory retirement age for the judiciary as a measure to enhance judicial independence. While they accept this important public policy objective requires some impairment of their right to work without age discrimination, the Applicants maintain that the age of 70 is arbitrary and without any rational justification.

The EMRSLAA, 2005 confirmed the Government's view that the age of 75 is the appropriate mandatory retirement age for the Province's judicial officers of Provincial Court Judges, Masters and Case Management Masters. As a result, the Association made numerous representations over the last two years during the debates concerning the EMRSLAA, 2005 and Bill 14, the Access to Justice Act trying to get the Government to set the same retirement age for Justices of the Peace. The Office of the Chief Justice also made similar representations to the Attorney General calling for a single retirement age of 75 for all judicial officers in the Ontario Court of Justice. The opposition parties also supported such an amendment in the Bill 14 debates. Changing the retirement age to 75 would not only end unjustified age discrimination but would also make available numerous retired Justices of the Peace between the ages of 70 and 75 who are ready and willing to be assigned per diem work by the Office of the Chief Justice. The Ontario Court of Justice adjudication system is still suffering from a serious shortage of Justices of the Peace which is causing backlogs in both bail hearings and more widely in Provincial Offence Act hearings. While the Attorney General has appointed a significant number of Justices over the last year, most of such Justices remain in training which can last 6 months to a year.

Unfortunately, the Government steadfastly ignored the representations of the Association, the Office of the Chief Justice and the opposition parties. This left the Association with no choice except to bring this Charter challenge which is causing unnecessary costs and use of scarce resources by both the Association and the Government. The Association is hopeful that the Government will reconsider its position with the filing of this challenge so that this matter can be resolved promptly.

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