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Statutes of Newfoundland 1991
AN ACT TO REVISE THE LAW RESPECTING THE PROVINCIAL COURT
(Assented to May 31, 1991)
1. Short title
3. Provincial Court
5. Appointment of judges
7. Chief judge
8. Powers of chief judge
9. Other employment
15. Ministerial powers
16. Judicial council
17. Procedure of council
18. Functions of judicial council
20. Powers of judicial council
22. Procedure and notice
26. Director of Court Services, clerks, etc.
27. Duties of clerks
30. Notice demanding returns
32. Immunity of judge
33. Continuance of proceedings
34. Summary Proceedings Act
35. Conference of judges
36. Existing judges
37. Reference to judges
38. 1974 No.77
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
1. This Act may be cited as the Provincial Court Act, 1991.
2. In this Act
(a) "chief judge" means the Chief Provincial Court Judge appointed under section 7;
(b) "clerk" means a chief clerk, a clerk or deputy clerk of the court and includes a clerk acting under the Criminal Code and the Young Offenders Act (Canada) and a person who performs the duties of a clerk of the court;
(c) "court" means the Provincial Court of Newfoundland continued under section 3;
(d) "director" means the Director of Court Services appointed under section 26;
(e) "district" means a Provincial Court district constituted under section 13;
(f) "judge" means a Provincial Court judge appointed under this Act and includes the chief judge;
(g) "judicial council" means the Judicial Council of the Provincial Court of Newfoundland continued under section 16; and
(h) "minister" means the Minister of Justice and Attorney General.
PROVINCIAL COURT AND JUDGES
3. (1) The Provincial Court of Newfoundland is continued under this Act.
(2) The court shall be a court of record.
(3) The court shall be composed of the judges as appointed under section 5 and those judges deemed to have been appointed under section 36.
(4) The court shall be presided over by a judge.
4. (1) The court and every judge have jurisdiction throughout the province and every judge
(a) shall exercise the powers and perform the duties conferred or imposed upon a judge under an Act of the Legislature or the Parliament of Canada;
(b) has the power and authority vested under an Act of the Legislature in a judge, two justices of the peace sitting together or a youth court or judge of a youth court, subject to The Young Persons Offences Act;
(c) may exercise the powers and perform the duties conferred or imposed upon a judge or one or more justices of the peace under an Act of the Parliament of Canada; and
(d) is, by virtue of the office, a justice of the peace.
(2) A judge may preside over the court at any place in the province for the orderly dispatch of the business of the court.
Appointment of judges
5. (1) The Lieutenant-Governor in Council, on the recommendation of the minister, may appoint persons to be judges of the court.
(2) No person shall be appointed as a judge unless he or she
(a) has been a member in good standing of the bar of one or more of the provinces of Canada for a total of at least 10 years; and
(b) is at the time of the appointment a practising member in good standing of the Law Society of Newfoundland.
(3) No person may be recommended by the minister under subsection (1) without the recommendation of the judicial council under paragraph 18(a).
6. (1) Every judge shall before assuming his or her office take and sign
(a) the oath or affirmation of allegiance; and
(b) the judicial oath or affirmation
referred to in The Oaths of Office Act.
(2) The oaths or affirmations referred to in subsection (1) shall be administered by a judge and that judge shall transmit the subscribed oaths or affirmations to the minister.
7. (1) The Lieutenant-Governor in Council shall appoint a Provincial Court judge as chief judge.
(2) The term of office of the chief judge appointed under subsection (1) shall be 10 years.
(3) The minister shall appoint a judge to act in the place of the chief judge for all purposes where the office of the chief judge is vacant due to illness or other cause and, while acting as chief judge, that judge shall have the powers and may carry out the functions and duties of the chief judge.
(4) A chief judge whose office is vacant under subsection (3) shall be considered to have resigned his or her office as chief judge if that vacancy continues for more than 1 year.
(5) No judge may act during a vacancy under subsection (3) for more than 1 year at which time a chief judge shall be appointed under subsection (1).
(6) A judge appointed as acting chief judge under subsection (3) shall, while exercising the powers, functions and duties of the chief judge, be paid the same salary received by the chief judge.
(7) For the purpose of subsection (2), the chief judge on the date of the coming into force of this Act shall be deemed to have commenced his position as chief judge on that date.
Powers of chief judge
8. (1) The chief judge shall
(a) have the general supervision and direction of the sittings of the court including the assignment of the judicial duties of the court;
(b) have charge at all times of the general policy of the court in judicial matters;
(c) assign duties and decide upon requests for exchange of duties among judges;
(d) issue reprimands or suspensions to judges, where he or she considers it appropriate and necessary;
(e) co-ordinate and apportion the work of judges and, subject to section 14, transfer judges from one district to another when a transfer is reasonable and desirable;
(f) make recommendations to the minister respecting all matters affecting the general administration of the court; and
(g) perform additional duties that may be prescribed by this Act or the regulations.
(2) Where the chief judge suspends a judge under paragraph (1)(d), the chief judge shall within 2 days of that suspension make a complaint to the judicial council under Part II.
9. (1) A judge shall not engage in a business, trade or occupation but shall devote his or her whole time to the performance of his or her duties as a judge.
(2) Notwithstanding subsection (1), a judge may act as a commissioner, arbitrator, adjudicator, referee, conciliator or mediator on a commission or on an inquiry or other proceeding or engage in other extra-judicial functions with the approval of the chief judge.
(3) A judge acting in a capacity referred to in subsection (2) shall not accept a salary, fee, remuneration or other emolument other than reasonable travel or other expenses.
(4) Notwithstanding this section, a judge may carry out non-judicial functions for remuneration provided that
(a) an application to do so is made to the judicial council;
(b) the judicial council approves that application; and
(c) there is no conflict with that judge's judicial duties.
10. A judge shall hold office during good behaviour.
11. (1) A judge may resign his or her office by written resignation delivered to the minister.
(2) The chief judge may resign his or her office as chief judge by written resignation delivered to the minister.
12. (1) Every judge shall retire upon attaining the age of 65 years.
(2) For the purposes of this section, every judge shall be considered from the commencement of his or her office as a judge to be an employee for the purposes of those provisions of The Public Service (Pensions) Act which are not inconsistent with this Act.
(3) The retirement age of a judge in office shall not be altered without his or her consent.
13. (1) The Lieutenant-Governor in Council may, by regulation, divide the province into Provincial Court districts but this does not affect a judge's jurisdiction throughout the province.
(2) A judge shall maintain his or her principal residence within an area of 70 kilometres by road from the city or municipality in which the courthouse of the district to which the judge has been appointed is located.
14. (1) A judge shall not be transferred from one district to another without his or her consent or the approval of the judicial council.
(2) Unless approved by the minister, a transfer of a judge from one district to another shall not take place if the result of that transfer is a reduction in the number of judges in a district or a vacancy in a district.
15. The minister may
(a) recommend to the Lieutenant-Governor in Council a person to be a judge of the court; and
(b) approve or disapprove the transfer of a judge under subsection 14(2).
16. (1) The Judicial Council of the Provincial Court of Newfoundland is continued under this Act.
(2) The Lieutenant-Governor in Council shall appoint to the judicial council 6 members being
(a) a justice of the Supreme Court who shall be nominated by the Chief Justice of the Trial Division and who shall be the chairperson of the judicial council;
(b) 1 bencher of the Law Society of Newfoundland who shall be nominated by the benchers of the law society;
(c) 2 persons nominated by the minister;
(d) the president of the Newfoundland Provincial Judges Association; and
(e) the chief judge, by virtue of the office.
(3) The chief judge shall not function as a member of the judicial council at an inquiry or application
(a) respecting the conduct of a judge suspended or reprimanded by the chief judge; or
(b) respecting the chief judge.
(4) The Lieutenant-Governor in Council may by order prescribe the payment of an allowance to members of the judicial council who are not judges or justices.
(5) Each member appointed under paragraphs (2)(a) to (d)
(a) shall serve for 3 years during good behaviour; and
(b) unless dismissed for lack of good behaviour, shall continue to hold office until he or she is reappointed or a new member is appointed.
(6) A majority of the members of the judicial council, including the chairperson, constitutes a quorum and a majority vote is sufficient for the exercise of all of the jurisdiction and powers of the judicial council.
(7) The members of the judicial council holding office on the coming into force of this Act shall have the powers and duties of the judicial council under this Act until new members are appointed to the judicial council under this section.
Procedure of council
17. The judicial council may determine rules of procedure respecting its proceedings.
Functions of judicial council
18. The functions of the judicial council are
(a) to consider all applicants for judicial appointment and make a recommendation to the minister with respect to those applicants;
(b) to receive and investigate complaints against a judge, the chief judge or a reprimand or suspension made by the chief judge;
(c) to receive and investigate complaints made to it by a judge relating to that judge's judicial duties and to make recommendations to the minister or the chief judge as it considers appropriate;
(d) to consider and approve or disapprove transfers under section 14;
(e) to prepare and revise, in consultation with the judges, a code of ethics for the judges of the court;
(f) to consider proposals for improving the services of the court and to report on the matter to the minister; and
(g) to review and report on a matter referred to it by the minister.
19. (1) Complaints shall be made to the chairperson of the judicial council in writing and in a form or manner required by the judicial council.
(2) A person who has made a complaint under subsection (1) may withdraw that complaint but notwithstanding that withdrawal, the judicial council may proceed under this Part as if that complaint had not been withdrawn.
Powers of judicial council
20. (1) Where the judicial council receives a complaint it shall immediately refer that complaint to a person the judicial council considers suitable for an investigation and report.
(2) The judicial council may suspend the chief judge or a judge
(a) pending the result of an investigation or inquiry under this Part; or
(b) where it is believed that action is necessary.
(3) Where a suspension occurs under paragraph (2)(b), the matter shall immediately be referred for an investigation and report under subsection (1).
(4) The chief judge or a judge suspended under this Act shall receive his or her salary while suspended unless otherwise directed by the judicial council.
(5) The judicial council has all the powers, privileges and immunities of a commissioner under The Public Enquiries Act.
(6) A complaint made or an investigation or inquiry commenced before the coming into force of this Act shall be completed by the judicial council existing at the time as if The Provincial Court Act, 1974 were still in force.
21. (1) Where the judicial council receives a report under subsection 20(1), it shall consider the report and determine, by a majority vote whether the complaint is frivolous, vexatious or unfounded and
(a) may dismiss the complaint; or
(b) may proceed to hold an inquiry in respect of the report and complaint.
(2) Notwithstanding another section of this Act, where the judicial council receives a complaint alleging that the chief judge or a judge
(a) has acted in a manner contrary to section 10; or
(b) is infirm or incapable of performing his or her judicial duties;
it shall hold an inquiry.
(3) An inquiry shall be held in private unless a public inquiry is requested by the judge who is the subject of that inquiry.
Procedure and notice
22. (1) Where the judicial council holds an inquiry into a complaint, it shall
(a) give 30 days notice in writing to the judge against whom the complaint has been made;
(b) state the particulars of the complaint upon the notice; and
(c) state the date, time and place of the inquiry upon the notice.
(2) The complainant, the judicial council and a judge against whom a complaint has been made are entitled to appoint legal counsel for the duration of an inquiry by the judicial council.
(3) A judge against whom a complaint has been made shall be afforded an opportunity to be heard and to cross-examine witnesses or adduce evidence on his or her behalf.
(4) Following the completion of an inquiry, the judicial council shall report its findings and recommendations and submit a record of the inquiry to the Lieutenant-Governor in Council and to the judge or chief judge in respect of whom the inquiry was made.
23. Following an inquiry under this Part, the judicial council may order
(a) that the chief judge be removed from his or her office as chief judge;
(b) that the chief judge or a judge be removed from his or her office as judge;
(c) a suspension or further suspension of the chief judge or a judge for a definite period of time, with or without a salary;
(d) that the chief judge or a judge be reinstated with or without a reprimand;
(e) that the chief judge or a judge be granted a leave of absence, with or without a salary, for a period which the judicial council considers appropriate;
(f) that the complaint be dismissed; and
(g) that the judge be compensated for all costs incurred by him or her relating to the inquiry.
24. A judge affected by a decision under this Part may, within 30 days of notification of that decision, appeal to the Trial Division on an issue of fact or law or of mixed fact and law.
25. No action or other proceeding shall lie against the judicial council or a member of the judicial council for an act done in good faith in the execution of a duty under this Act.
Director of Court Services, clerks, etc.
26. (1) There shall be appointed or employed in the manner authorized by law, a Director of Court Services, clerks of the court and other officers, clerks and employees that the administration and business of the court requires.
(2) Those appointed under this section shall, by virtue of their office, have power to administer oaths or affirmations, take affidavits, issue process and take bail.
(3) The director and every clerk appointed under this section shall, before commencing his or her duties take and sign the following oath or affirmation:
"I, A.B., of _________________________, swear (or affirm) that I will according to the best of my skill, learning, ability and judgment execute the duties of the office of the Director of Court Services (or clerk) of the Provincial Court of Newfoundland without favour, prejudice or partiality to another person." (In the case where an oath is taken add "So help me God".).
Duties of clerks
27. (1) The clerks, officers and other employees of the court are under the direction of the director and shall perform the duties prescribed by the director.
(2) Notwithstanding subsection (1), the clerks, officers and other employees of the court shall act under the direction of a judge in all judicial matters.
(3) The Lieutenant-Governor in Council may by regulation require and prescribe the giving of security by the director, a clerk of the court or other officer or employee of the court for the performance of his or her duties.
(4) Every person employed as a shorthand reporter in the court shall before commencing his or her duties take and sign before a judge, the following oath or affirmation:
"I, A.B., of ____________________, swear (or affirm) that I will faithfully take down and transcribe the evidence and proceedings at all trials and other judicial proceedings in which I am assigned to act as shorthand reporter, and that I will faithfully perform any other duty assigned to me." (In the case where an oath is taken add "So help me God".).
(5) A person appointed under subsection 26(1) shall be an officer of the court and an employee of the Department of Justice.
28. (1) The Lieutenant-Governor in Council shall appoint, a tribunal consisting of 3 persons to recommend the salaries and benefits of judges and the chief judge.
(2) One person appointed under subsection (1) shall be appointed by the Lieutenant-Governor in Council to serve as chairperson.
(3) The first tribunal appointed under this section shall be appointed within 3 months of the proclamation of this Act and each subsequent tribunal shall be appointed 6 months prior to the expiration of a 4 year period as determined under subsection (8).
(4) The persons appointed to the tribunal under subsection (1) have the powers, privileges and immunities of a commissioner under The Public Enquiries Act.
(5) The tribunal shall submit a report containing recommendations on salaries and benefits to the minister within 6 months following the date of the appointment of the tribunal.
(6) The minister shall, within 15 days of receiving a report under subsection (5) lay that report before the House of Assembly if the House of Assembly is in session or if not, within 15 days of the commencement of the next session.
(7) The House of Assembly shall consider and approve or vary a report submitted under subsection (6) within 30 days of that submission and upon the expiration of those 30 days that report or varied report shall be implemented.
(8) A report or varied report implemented under subsection (7) shall be in effect for a 4 year period commencing on the expiry of the 30 day period referred to in subsection (7).
29. The Lieutenant-Governor in Council may make regulations
(a) providing for leave of absence, vacation or sick leave of judges;
(b) upon the recommendation of the judicial council, prescribing further duties of the chief judge;
(c) providing for the payment of expenses of judges;
(d) subject to The Archives Act, providing for the safekeeping, inspection and destruction of books, documents and papers of the court;
(e) providing for the keeping and maintaining of statistical records of the court;
(f) providing for the seal and duplicate seals to be used by the court;
(g) for the purposes of sections 13 and 27;
(h) respecting remuneration and procedures of tribunals appointed under section 28; and
(i) generally to give effect to the purposes of this Act.
Notice demanding returns
30. (1) The director or a clerk appointed under section 26, whose duty it is to forward reports or make returns as required by the regulations or another Act and who refuses or neglects to do so in the manner and at the time provided in the regulations or by or under an Act shall, upon written notice by the minister, be required to immediately do so.
(2) Notice under this section may be forwarded to the usual or last known postal address of the director or of a clerk by registered prepaid post or by personal delivery.
31. (1) A payment required to be made by the Crown under this Act shall be paid by the Minister of Finance on request of the minister out of the Consolidated Revenue Fund.
(2) Money paid into the court under a statute of the province or of Canada to which, following an inquiry by the director, clerk or other court staff,
(a) there is no person legally entitled; or
(b) the person legally entitled is either not known or that person's whereabouts are unknown,
and which has been paid into the court for no less than 3 years shall be paid into the Consolidated Revenue Fund.
(3) A person entitled to money paid into the Consolidated Revenue Fund under subsection (2) may apply to the Trial Division for an order
(a) that the person is legally entitled to that money; and
(b) directing the Minister of Finance to pay over to that person the money and interest that are set out in the order.
(4) Upon receipt of a copy of an order issued under subsection (2), the Minister of Finance shall pay the money and interest set out in the order from the Consolidated Revenue Fund to the appropriate person.
Immunity of judge
32. Every judge has the same immunity from liability as a judge of the Supreme Court.
Continuance of proceedings
33. (1) Subject to the Criminal Code, where a judge dies, resigns, retires, is removed from office, or is absent from office because of illness or for another cause, the chief judge may designate another judge to take up all actions, causes, matters, processes, hearings and proceedings which were pending before the judge at the time of his or her death, resignation, retirement, removal or absence.
(2) A judge designated under subsection (1) shall
(a) take up, rehear and decide the action, cause, matter, process, hearing or proceeding; or
(b) with the consent of all parties, complete the hearing of the action, cause, matter, process, hearing or proceeding and decide it.
Summary Proceedings Act
34. The provisions of The Summary Proceedings Act, where not inconsistent with this Act, apply to matters under this Act.
Conference of judges
35. (1) A conference consisting of the judges of the court shall meet at least once yearly at the call of the chief judge upon a day fixed by the chief judge and of which the chief judge shall give notice to the judges for the purpose of
(a) considering the operation of this Act and the regulations;
(b) inquiring into and examining defects that appear to exist in the procedure of the court; and
(c) considering those other matters which the chief judge or 1 of the judges considers appropriate.
(2) Where the conference considers it necessary and appropriate to do so, it may form 1 or more subcommittees to deal with a matter referred to in subsection (1) and each subcommittee so formed shall meet at those times and places that are necessary to achieve the purpose for which it was formed.
TRANSITIONAL, REPEAL AND
36. (1) A person who is a judge when this Act comes into force shall be deemed to have been appointed under this Act and has the jurisdiction, powers, rights and privileges conferred upon a judge by this or another Act.
(2) An action, cause, matter, process, hearing, prosecution or proceeding pending or commenced before a judge before the coming into force of this Act may be continued before him or her as a judge under this Act and all consequences shall follow and all proceedings may be taken as if this Act had not been enacted.
Reference to judges
37. A reference in an Act or regulation to a Provincial Court judge shall be read as a reference to a judge within the meaning of this Act.
38. The Provincial Court Act, 1974 is repealed.
39. This Act comes into force on a date to be proclaimed by the Lieutenant-Governor in Council.
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