First

Session, 46th General Assembly

Elizabeth II, 2008

BILL 50

AN ACT TO AMEND THE PROVINCIAL

COURT ACT, 1991 NO. 2

Received and Read the First Time ...................................................................................................

Second Reading .................................................................................................................................

Committee ............................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

THOMAS W. MARSHALL, Q.C.

Minister of Justice and Attorney General

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Provincial Court Act, 1991 .

Clause 1 of the Bill would amend

section 8 of the Act respecting the disciplinary powers of the chief judge as a

consequence of the amendments proposed in clause 4 of the Bill.

Clauses 2 and 3 of the Bill would

amend sections 16 and 18 of the Act respecting the composition and powers of

the judicial council as a consequence of the amendments proposed in clause 4 of

the Bill.

Clause 4 of the Bill would provide

for a new mechanism for the receipt, consideration and adjudication of

complaints against Provincial Court judges.

Clause 5 of the Bill would define the

word "tribunal" as the salary and benefits tribunal appointed under

section 28 for the purpose of that

section and sections 28.1 and 28.2.

Clause 6 of the Bill would make a

consequential amendment to the Access to

Information and Protection of Privacy Act to restrict access to records

created in a disciplinary proceeding.

Clause 7 of the Bill is a

transitional provision that would address a disciplinary proceeding in progress

under the current law on the coming into force of the amendments contained in

this Bill.

A BILL

AN ACT TO AMEND THE PROVINCIAL

COURT ACT, 1991 NO. 2

Analysis

S.8 Amdt.

Powers of chief judge

S.16 Amdt.

Judicial council

S.18 Amdt.

Functions of judicial council

Ss.19 to 25 R&S

19. Complaints Review

Committee

20. Judicial complaints

panel

21. Powers of a

commissioner

22. Complaint

23. Powers of committee

24. Adjudication tribunal

25. Hearing

25.1 Guilty

plea by

respondent

25.2 Powers of

adjudication

tribunal

25.3 Filing and

publication

of decisions

25.4 Appeal to Trial

Division

25.5 Action

prohibited

5. S.28 Amdt.

Appointment of tribunal

6. SNL2002 cA-1.1 Amdt.

7. Transitional

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

SNL1991 c15

as amended

1. (1) Paragraph 8(1)(

d) of the Provincial Court Act, 1991 is repealed.

(2) Subsection 8(2) of the Act is repealed.

2. (1) Subsection 16(2) of the Act is

repealed and the following substituted:

(2) The Lieutenant-Governor in Council shall appoint

to the judicial council 4 members as follows:

(

a) a bencher of the Law Society of Newfoundland

who shall be nominated by the benchers of the law society;

(b) 2 persons nominated by the minister; and

(

c) the president of the judges' association.

(2) Subsection 16(2.1) of the Act is repealed and

the following substituted:

(2.1) The chief judge, by virtue of the office,

shall be a member of the judicial council and shall be the council's

chairperson.

(3) Subsection 16(3) of the Act is repealed.

(4) Subsection 16(7) of the Act is repealed.

(1) Section 18 of the Act is renumbered as

subsection 18(1).

(2) Paragraph 18(1)(

b) of the Act is repealed.

(3) Section 18 of the Act is amended by adding

immediately after subsection (1) the following:

(2) The code of ethics referred to in paragraph

(1)(

e) is subordinate legislation as defined in the Statutes and Subordinate Legislation Act.

4. Sections 19 to 25 of the Act are repealed and

the following substituted:

Complaints Review

Committee

(1) The

Complaints Review Committee is established comprising

(

a) the chief judge, who

shall be the chairperson of the committee;

(

b) a justice of the Trial Division of the Supreme

Court of Newfoundland and Labrador chosen by the Chief Justice of the Trial

Division; and

(

c) a person, who is not a Provincial Court judge

or a member of the Law Society of Newfoundland and Labrador, appointed by the

minister to represent the public interest.

(2) Where the chief judge is unable to perform his

or her duties as the chairperson of the committee or the chief judge is the

subject of a complaint referred to the committee by the director, the associate

chief judge shall serve as the chairperson of the committee in the place of the

chief judge.

Judicial

complaints panel

(1) The

Lieutenant-Governor in Council shall appoint a judicial complaints panel

comprising

(a) 2 justices of the Trial Division of the

Supreme Court of Newfoundland and Labrador nominated by the Chief Justice of

the Trial Division;

(b) 2 persons who are judges of the provincial

court of Nova Scotia, New Brunswick or Prince Edward Island, nominated by the

chief judge of the person's court; and

(c) 2 persons, who are not Provincial Court

judges, judges of another court, retired judges or members of the Law Society

of Newfoundland and Labrador, to represent the public interest.

(2) A justice of the Trial Division of the Supreme

Court is not eligible to be both a member of the Complaints Review Committee

and the judicial complaints panel.

(3) The Lieutenant-Governor in Council shall

appoint one of the persons appointed under paragraph (1)(

b) as the chairperson

of the panel.

(4) Members of the panel shall be appointed for a

term of 3 years and are eligible for re-appointment.

(5) Notwithstanding the expiry of his or her term

of appointment, a member of the panel continues to be a member until he or she

is reappointed or replaced.

(6) Members of the panel shall serve on the panel

without payment for their services, but may be remunerated for service as a member

of an adjudication tribunal and paid their travel and other expenses associated

with the work of the tribunal in accordance with the rates set by the

Lieutenant-Governor in Council.

Powers of a commissioner

21. The

Complaints Review Committee and an adjudication tribunal appointed under

section 24 and a person appointed by either of them may summon witnesses and

require those witnesses to give evidence, orally or in writing, upon oath or

affirmation, and produce the documents and things that either of them considers

necessary to the full investigation and hearing of an allegation or complaint

and have the powers, privileges and immunities that are conferred on a commissioner

appointed under the Public Inquiries Act,

Complaint

22. A

complaint against a judge shall be made in writing addressed to and filed with

the Complaints Review Committee through the office of the director who shall

forward it to the members of the committee.

Powers of committee

(1) The

Complaints Review Committee, on review of a complaint under

section 22, may

(

a) dismiss the complaint where in its opinion

(

i) the matter that is the subject of the

complaint is not within the jurisdiction of the judicial complaints panel, or

(ii) there is no evidence to support the complaint;

(

b) with the consent of the complainant and the

judge attempt to resolve the complaint; or

(

c) where the committee is of the opinion that

there are reasonable grounds to believe that the judge has engaged in the

conduct that is the subject of the complaint, refer the complaint to the

judicial complaints panel.

(2) Where the Complaints Review Committee is of

the opinion that there are reasonable grounds to believe that a judge has

engaged in the conduct that is the subject of the complaint, the committee may

suspend the judge.

(3) A judge suspended under subsection (2) shall

receive his or her salary while suspended unless the Complaints Review

Committee directs otherwise.

(4) Where a complaint is received by the Complaints

Review Committee, the committee may refer the complaint to a person to conduct

an investigation and to report to the committee.

(5) A complainant whose complaint is dismissed by

the Complaints Review Committee under subsection (1) may, within 30 days after

receiving notice of the dismissal, appeal the dismissal to the Trial Division

by filing a notice of appeal with the Registrar of the Supreme Court.

Adjudication tribunal

(1) For

the purpose of dealing with a complaint referred to the judicial complaints panel,

the chairperson of the panel shall appoint from it an adjudication tribunal

consisting of 3 persons, one of whom shall be a justice appointed under

paragraph 20(1)(a), one of whom shall be a judge appointed under paragraph

20(1)(

b) and one of whom shall be a person appointed under paragraph 20(1)(c).

(2) The chairperson of the judicial complaints panel

shall appoint the justice appointed to the panel under paragraph 20(1)(

b) to be

the chairperson of that adjudication tribunal.

Hearing

(1) Where

a complaint has been referred to the judicial complaints panel under paragraph 23 (1)(c), an adjudication tribunal shall hear and

have carriage of the complaint.

(2) An adjudication tribunal may establish its own

procedure with respect to a hearing of a complaint.

(3) An adjudication tribunal to whom a complaint

is referred under paragraph 23(1)(

c) shall

(

a) give 30 days notice in writing to the judge

against whom the complaint has been made and the complainant of the time and

the place of the hearing; and

(

b) provide to the judge and the complainant a

statement of the particulars of the complaint.

(4) The judge against whom the complaint has been

made has a right to be heard and may be represented by counsel.

(5) A hearing shall be conducted in public but an

adjudication tribunal may exclude the public from a hearing, or from part of

it, where it considers the desirability of protecting a party to the complaint

or a witness against the consequences of possible disclosure of personal

matters outweighs the desirability of holding the hearing in public.

Guilty plea by

respondent

25.1

(1) Where

a judge admits to the allegations set out in a complaint, the adjudication

tribunal shall, without calling evidence or hearing witnesses, unless the

tribunal believes it is appropriate to do so, hear submissions.

(2) Where a judge admits to the allegations set

out in a complaint, and following submissions under subsection (1), the adjudication

tribunal may

(

a) reprimand the judge;

(

b) suspend the judge for a period that it considers

appropriate, until conditions which it may impose are fulfilled, or until

further order of the adjudication tribunal;

(

c) allow the judge to resign from the court;

(

d) remove the judge from the court;

(

e) order that the director publish a

summary of

the decision including the information the tribunal may specify; and

(

f) order that the judge comply with one or more

of the following:

(

i) obtain medical treatment,

(ii) obtain counselling,

(iii) obtain substance abuse counselling or

treatment, until the judge can demonstrate to the tribunal or other body or

person designated by the tribunal that a condition related to substance abuse

rendering the judge incapable or unfit to perform his or her duties has been

overcome,

(iv) report on his or her compliance with an order

made under this

section and authorize others involved with his or her treatment

or supervision to report on it, or

(

v) impose other requirements that are appropriate

in the circumstances.

Powers of adjudication

tribunal

25.2

(1) Upon

the hearing of a complaint, an adjudication tribunal shall decide whether or

not a judge is guilty of the conduct that is the subject of the complaint.

(2) Where an adjudication tribunal decides that a judge

is not guilty, it shall dismiss the complaint.

(3) Where an adjudication tribunal decides that a judge

is guilty, it may

(

a) reprimand the judge;

(

b) suspend the judge for a period that it

considers appropriate, until conditions which it may impose are fulfilled, or

until further order of the adjudication tribunal;

(

c) allow or direct the judge to resign from the

court;

(

d) remove the judge from the court;

(

e) order that the director publish a

summary of

the decision including the information that the tribunal may specify; and

(

f) order that the judge comply with one or more

of the following:

(

i) obtain medical treatment,

(ii) obtain counselling,

(iii) obtain substance abuse counselling or

treatment, until the judge can demonstrate to the tribunal or other body or

person designated by the tribunal that a condition related to substance abuse

rendering the judge incapable or unfit to perform his or her duties has been

overcome,

(iv) report on his or her compliance with an order

made under this

section and authorize others involved with his or her treatment

or supervision to report on it, or

(

v) impose other requirements that are appropriate

in the circumstances.

Filing and publication

of decisions

25.3

(1) An

adjudication tribunal shall file a decision or order made under subsection 25.1 (2) or 25.2 (2) or

(3) with the director and provide a copy to the complainant and the judge and

the chief judge or, where the judge against whom the complaint was made is the

chief judge, the associate chief judge.

(2) The director shall maintain a copy of a

decision or order filed under subsection (1) for a minimum of 5 years after the

day the decision is filed and shall upon receiving a request to view the

disciplinary records in relation to a judge permit a person to view a

summary

of a decision where that judge was the respondent, prepared in accordance with

subsection (4).

(3) The director shall publish a

summary of a

decision or order of an adjudication tribunal in a newspaper of general circulation

in the province within 14 days of the expiry of the appeal period provided in

section 25.4, where the decision or order

(

a) suspends the judge;

(

b) allows the judge to resign his or her office;

(

c) removes the judge from the court; or

(

d) requires that a

summary of the decision or

order be published.

(4) The

summary of the decision published under

subsection (3) shall include

(

a) the name of the judge;

(

b) a brief description of the conduct of the judge

that was found to be deserving of sanction;

(

c) the name of the complainant, unless the

complainant has requested that his or her name be withheld;

(

d) the contents of the order in relation to the

actions referenced in paragraphs (3)(

a) to (c); and

(

e) other information specified for publication in

the decision or order.

(5) Where a decision of an adjudication tribunal

is appealed under

section 25.4, the publication of the decision of the tribunal

as required by this

section is stayed until the outcome of the appeal.

(6) Where, on appeal, a decision is confirmed, varied

or set aside, the director shall, within 14 days of the filing of the decision as

confirmed, varied or set aside, publish a

summary of the decision and

subsections (2) and (3) apply, with the necessary changes.

Appeal to Trial

Division

25.4

(1) A

complainant or a judge affected by a decision or order of an adjudication

tribunal may, within 30 days after receiving notice of the decision or order

appeal the decision or order to the Trial Division by filing a notice of appeal

with the Registrar of the Supreme Court.

(2) An appeal under this

section does not stay the

decision or order being appealed unless the Trial Division orders otherwise.

Action prohibited

25.5 An

action for damages shall not lie against the Complaints Review Committee, the judicial

complaints panel, an adjudication tribunal or the individual members of those

bodies, a person appointed to conduct an investigation under subsection 23 (2) or the director for

(

a) an act or failure to act, or a proceeding

initiated or carried out in good faith under this Act, or carrying out their duties

or obligations under this Act; or

(

b) for a decision or

order made or enforced in good faith under this Act.

Section 28 of the Act is amended by adding

immediately after subsection (6) the following:

(7) In this

section and sections 28.1 and 28.2,

"tribunal" means the salaries and benefit's tribunal appointed under

subsection (1).

SNL2002 cA-1.1 Amdt.

6. Subparagraph 2(h )(

v) of the Access to Information and Protection

of Privacy Act is repealed and the following substituted:

(

v) a record of the Complaints Review Committee or

an adjudication tribunal established under the Provincial Court Act, 1991 ;

Transitional

7. Where a complaint was made under

section 19 of

the Provincial Court Judges Act, 1991

as it read prior to the passage of this Act but the judicial council has not

proceeded to hold an inquiry with respect to it under paragraph 21(1)(

b) of the

Provincial Court Act, 1991 as it read

prior to the passage of this Act, the complaint shall be taken up and continued

as if it had been made under

section 22 of the Provincial Court Judges Act, 1991 as enacted by this Act.

Earl G. Tucker, Queen's Printer