COURT PROFILE
WHAT IS THE PROVINCIAL
COURT
HISTORICAL OVERVIEW
JUDGES OF THE
PROVINCIAL COURT
STAFF OF THE PROVINCIAL
COURT
FOCUS OF THE PROVINCIAL
COURT
THE
JURISDICTION OF THE COURT AT PRESENT
THE PROVINCIAL COURT
NETWORK
WHAT IS THE PROVINCIAL
COURT
 The Provincial Court of Newfoundland and Labrador s the legal
and constitutional institution responsible for delivering "front
line" judicial services throughout the province. Its existence
is authorized by section 92 of the Canadian Constitution Act,
1867, but its inception predates that time by about 140 years.
The Provincial Court is just one constituent part of a broad
legal and judicial system in Canada. It is, however, a very
important component in that it is the only court with which a
majority of persons in the province are ever likely to come into
direct contact.
Statistics are subject to interpretation but the Provincial
Court handles by far the majority of cases requiring judicial
intervention.
HISTORICAL OVERVIEW
The existence of the Provincial Court can be traced to 1729 in
colonial Newfoundland. Prior to that time, and for some decades
later, settlement in the colony was not officially authorized.
The tenure of governing authorities was seasonal and transient.
From the time of the discovery of Newfoundland in 1497 until
1729 the now infamous "Fishing Admirals" administered the only
public form of justice in the colony. This form of justice was
authorized by Charter and special writ while adherence to the
rule of law was not often considered to be of particular
importance. This system was confirmed by King Williams Act, 1699
but in 1729, responding to demands from the colony, Captain
Henry Osbourne was dispatched to Newfoundland as the first
Governor of the territory with an administration mandate that
included the discretion to appoint justices of the peace as
local magistrates along with a number of constables for the
purpose of administering justice in the place of the fishing
admirals.
One of Governor Osbourne's first acts was to divide the
territory into 6 districts and appoint justices to act as
magistrates in each. 20 such magistrates were appointed and they
covered an area roughly from Bonavista Bay to Cape Race. The
justices, or magistrates, were recruited from the local civilian
population and because settlement had by this time become de
facto permanent it was intended that they should act as
resident, year-round justices. They exercised the same basic
jurisdiction as their counterparts in England. For many years
after that time there existed a sharp rivalry between the
fishing admirals and those magistrates concerning who had actual
authority in the colony. The "fishing admirals" were reluctant
to give up their authority and they contended that the local
justices were merely "winter justices" and that they retained
authority during the fishing seasons while they were present in
Newfoundland. However, magistrates represented the only
permanently organized local system of justice in the colony
prior to the establishment of the Supreme Court in 1791.
Early magistrates were appointed by commission and served
without government remuneration. Their jurisdiction extended
beyond criminal matters and they were entitled to collect fees
from convicted persons as well as from other parties before the
courts as remuneration for their services.
Stipendiary magistrates, or salaried magistrates, were first
appointed in the 19th. century. They eventually extended
throughout the colony taking over from the voluntary, part-time
justices. From those humble beginnings a professional magistracy
evolved. The court system over which the stipendiary magistrates
presided became known as the "Magistrates' Court". That
nomenclature prevailed until 1974 when the Legislature of what
had now become the "Province of Newfoundland" enacted the first
ever Provincial Court Act thereby replacing parts of the old
Summary Jurisdiction Act and officially changing the name of the
court to the Provincial Court of Newfoundland and Labrador.
Confederation with Canada in 1949 was a milestone event in the
development of the Provincial Court of today but magistrates
continued to exercise jurisdiction over criminal and civil
matters.
In 1979, by amendment of the Provincial Court Act, magistrates
became known officially as Provincial Court judges.
JUDGES OF THE
PROVINCIAL COURT
Presently there are 23 Provincial Court judges (4 female and 19
male), one of whom is designated as the chief judge.
Unlike the judges of the Supreme Court who are appointed and
compensated by the Federal government, the judges of the
Provincial Court are appointed and paid by the province. The
qualifications for appointment are identical, that is, one must
be
(a) .... 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) .... at the time of the appointment a practising member in
good standing of the Law Society of Newfoundland.
The judges of both courts are said to hold office "during good
behaviour".
This method of selection and appointment of judges is one of the
two primary distinguishing features of the Provincial Court -
legal jurisdiction being the other.
To some, this distinction is often confusing as the Supreme
Court is also a provincial court, but it is not THE Provincial
Court and their respective jurisdictions are quite different.
Accountability of judges takes a different route in that courts
of appeal exist for the purpose of reviewing decisions of trial
courts, and there is a Judicial Council with authority under
sections 16 to 25 of the Provincial Court Act, 1991 to oversee
the ethical conduct of individual judges.
Under the Provincial Court Act, 1991, administratively, judges
are directed by the Chief Judge who, in conjunction with the
judges as a body, is also responsible for the overall policy of
the Provincial Court.
The office of the Chief Judge is presently located at St. John's
from where the incumbent chief judge directs the activities of
judges.
Judges of the Provincial Court are titled "The Honourable" and
are included in the Table of Precedence of Canada so that when
acknowledging a judge at a public function (s)he should be
introduced in proper formal order.
In court when speaking directly to a judge it is proper to
address her/him as "Your Honour", and when referring to the
judge indirectly it is appropriate to speak of "Her Honour" or
"His Honour" as the case may be.
In less formal situations, unless the judge is a very close
friend or a family member, it is appropriate to use the term
"Judge".
STAFF OF THE
PROVINCIAL COURT
Currently, aside from the 23 judges in the Provincial Court,
there is a staff of approximately 70 support personnel located
in various centres throughout the Province where the court
regularly holds sittings. In judicial matters those staff are
under the direction of judges but in all non-judicial matters
they come under the authority and direction of the Director of
Court Services who is located in St. John's.
By virtue of section 26 of the Provincial Court Act, 1991, the
staff of the court are civil servants and employees of the
Department of Justice.
Of course, judges themselves are not civil servants. As pointed
out on numerous occasions by the Supreme Court of Canada, and
other courts, The Charter of Rights and Freedoms, and, indeed,
the Canadian Constitution generally, recognize the Judiciary as
a third branch of government, equal to (but not subordinate to)
the Legislative and Executive branches as contemplated by the
British Parliamentary system of government from which our
Canadian and Newfoundland systems are derived and upon which
they are modelled. For that reason while judges can properly be
said to be officers of the state, and hence public servants,
they must be independent and impartial so as to properly carry
out their mandated duties as arbiters of societal rights and
freedoms. Under our judicial system judges would be in an
untenable position of conflict if they were to be held
accountable to another branch of government.
St. John's is the administrative headquarters of the Provinicial
Court system. It is overseen by the Director of Court Services
who reports to the Deputy Minister and the Chief Judge. For
operational purposes the province is divided into two
regions--Eastern and Western. The Eastern region extends from
St. John's to Clarenville while the Western region covers the
area from Gander west and north including Labrador. Each region
is administered by a Regional Manager who reports to the
Director of Court Services and each local branch court is
supervised by a Court Administrator reporting to the Manager for
their respective regions.
FOCUS OF THE
PROVINCIAL COURT
In its early days, particularly before 1949 when Newfoundland
and Labrador became a province of Canada, the forerunner of the
Provincial Court had a very different focus than the court of
modern times.
In the days of "Magistrate's Court" the magistrate was very
often the highest ranking government official readily accessible
to the population at-large, particularly in rural areas, and (s)he
was therefore depended upon to act as judge, advisor, counsellor,
community facilitator and in many other capacities for various
legal and quasi-legal matters. The court at that time had a much
more limited legal jurisdiction than the present Provincial
Court and it had a distinct social function in community affairs
as well.
Today the reverse is true. Presently the court has a very broad
jurisdiction in legal matters and a very limited function in
other social affairs. This change evolved largely with the
widespread presence throughout the Province of lawyers, social
workers and other professionals. Also, an ever increasing
emphasis on not only the actual independence and impartiality of
judges but also the need for the appearance of independence and
impartiality on the part of judicial officers was a very
significant and compelling factor in this evolution.
Indeed, because the constitution requires that judges be
independent and impartial, it would be extremely difficult, if
not entirely unacceptable, for the court and judges to become
involved in a very broad social mandate as in earlier times.
For that reason the Provincial Court relies for support in
carrying out its mandate upon various agencies and groups in the
community. To that end the court keeps a close liaison with
community based groups and organizations most notably members of
the Newfoundland Bar, including Crown Attorneys and Legal Aid
Lawyers, all of whom are officially "officers of the court" with
a duty to, and rights of audience before, the court; the police,
both the Royal Newfoundland Constabulary and the RCMP as well as
other "peace officers"; Adult Corrections professionals;
professionals in Youth Corrections; health care authorities; and
private sector correctional agencies such as the John Howard
Society and the Salvation Army Correctional Services.
THE
JURISDICTION OF THE COURT AT PRESENT
When speaking of the court, a reference to jurisdiction may mean
either of two things, and what is meant usually can only be
discerned from the context in which the term is used.
On the one hand jurisdiction refers to the territory over which
the authority of the court extends, while on the other hand the
term refers generally to the types and extent of authority
conferred upon the court by the various legislatures. This is
often referred to as "territorial jurisdiction" and "legal
jurisdiction".
Confusing? It seems the same was not true in ancient times when
language appears to have been more colourful and descriptive. In
those days the concept of territorial jurisdiction was aptly
represented by the word "bailiwick". A person in authority had a
right to act only in her/his own bailiwick. So much for the
plain language of modern times!
Despite the fact that the province is divided into judicial
districts for the purpose of delivering and administering
judicial services, the Provincial Court itself has jurisdiction
throughout the province and every provincial court judge has
authority to act anywhere in the province.
This is particularly advantageous for dealing with the exchange
of duties among judges when the need arises as well as for the
transfer of cases from one district to another as becomes
necessary from time to time.
In terms of legal jurisdiction exercised, since 1949 and the
advent of Confederation, the Provincial Court is the court of
first instance for all criminal cases involving adult offenders
meaning that everyone charged with a criminal offence must pass
through the Provincial Court even if they end up being tried in
the Supreme Court.
As well as being the court of first instance for all adult
criminal offences, the Provincial Court exercises absolute
jurisdiction over many criminal code offences such as summary
jurisdiction offences and a growing number of indictable
offences designated by the Criminal Code. It also exercises
jurisdiction concurrent with the Supreme Court (Trial Division)
over a vast number of other indictable offences where an accused
person elects trial in the Provincial Court.
In addition to criminal offences the Provincial Court has
jurisdiction over all offences under provincial and federal
legislation not considered criminal offences.
As well, the Provincial Court acts in the capacity of the Youth
Court as defined in legislation; it exercises authority of the
Traffic Court; the Small Claims Court for civil claims up to
$5,000.00; and outside of St. John's (where the Unified Family
Court is located), the Provincial Court deals with most Family
Law matters other than divorce or division of property under the
Family Law Act.
Finally, an important component of the work of the Provincial
Court is the exercise of a special jurisdiction to conduct
inquiries into accidental or mysterious deaths or fires
occurring within the province.
THE PROVINCIAL COURT
NETWORK
As alluded to earlier, for operational purposes the province is
divided into two regions comprised of eleven judicial districts,
each with a court centre and a branch of the court located
therein. The court sits "on circuit" in more than 30 other
places where no provincial court or court office is regularly
maintained.
The largest court centre, or court branch, is at St. John's
where there are 10 judges (one of whom is the chief judge).
After that comes Corner Brook, with 4 judges and then followed
by Gander, with 2 judges; Grand Falls, with 2 judges; Happy
Valley-Goose Bay, with 2 judges; and alphabetically, Clarenville,
Grand Bank, Harbour Grace and Stephenville, all with 1 resident
judge each. There is a court centre at Placentia (staffed full
time) and one at Wabush (staffed half-time); these two districts
are not covered by local resident judges, but covered judicially
by travelling judges.
The St. John's branch of the Provincial Court is comprised of
four divisions: Adult Criminal; Youth Court; Civil Court (Small
Claims); and Traffic Court. Branches outside of St. John's are
not similarly divided but each provides all of the services
covered by those divisions, as well as Family Court.
Most proceedings in the Provincial Court, with the exception of
some Family Law matters, are open to the public.
Although court staff cannot act as advisors to the public the
court is accessible to all who wish to avail of its services
without the intervention or representation of a lawyer.
Further information on the court and its functions can be
obtained by contacting any of the court centres.
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