|
|
50 |
|
|
|
|
First
Session, 46th General Assembly 57
Elizabeth II, 2008 |
|
|
AN ACT TO AMEND THE |
|
|
Received and Read the First Time................................................................................................... |
|
|
Second |
|
|
Committee............................................................................................................................................ |
|
|
Third |
|
|
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 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 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 AN ACT TO AMEND THE Analysis 1.
S.8 Amdt. 2.
S.16 Amdt. 3.
S.18 Amdt. 4.
Ss.19 to 25 R&S 5. S.28 Amdt. 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 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 (1) Paragraph 8(1)(d) of the Provincial Court Act, 1991 is repealed. (2) Subsection 8(2) of the Act is repealed. 2. (1) Subsection 16(2) of the Act is repealed and the following substituted: (2) The Lieutenant-Governor in Council shall appoint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. 3. (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 19. (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 20. (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,
2006. 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 23. (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 24. (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 25. (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. 5. 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. ŠEarl G. Tucker, Queen's Printer |