The Ford government has floated taking more control over who gets chosen as a provincial court judge in a new proposal obtained by the Star that critics warn would enable meddling and political patronage.
The proposed changes, which are not final, are found in what the government calls a “consultation paper,” shared this month with legal groups to begin a discussion on how Ontario can “fix its outdated and slow judicial and justices of the peace appointments process,” said Jenessa Crognali, spokesperson for Attorney General Doug Downey.
“The paper was a useful starting point for meaningful dialogue, but it should in no way be mistaken as a conclusion or result of this critical discussion,” she said. “So far, the attorney general has received thoughtful feedback from justice partners, and this practical input will form the foundation of solutions that may be formally proposed to fix the process for appointing judges and justices of the peace.”
The province’s biggest legal organizations told the Star that there have been no complaints about the appointments process or calls to fix it. They argue the process has produced a diverse and merit-based group of judges appointed by governments of all political stripes, including the current government.
“This all looks like patronage and an attempt by the attorney general to get appointments that he wants,” said William Trudell, chair of the Canadian Council of Criminal Defence Lawyers and a former member of the judicial appointments committee.
Currently, the independent judicial appointments advisory committee — made up of judges, lawyers and members of the public — screens applicants and provides the attorney general with a ranked shortlist of at least two candidates for each judicial vacancy. The attorney general is required to pick from that shortlist, though he is entitled to send the list back and ask for a new one.
In a statement to the Star, the Ontario Court of Justice said the process is recognized internationally and is the “gold standard” for the appointment of independent and qualified judges.
Downey is suggesting possible changes to the legislation that would include requiring the committee to provide him with the full list of all applicants for a vacancy, classified as “qualified” and “not qualified.”
According to the consultation paper, the attorney general would only be permitted to select a candidate from the “qualified” list. But he would also be entitled to require the committee to re-assess someone who was on the “not qualified” list, so long as they meet the minimum requirements to be a judge, meaning they’ve been a lawyer for at least 10 years. Downey is also proposing that the committee be required to turn over information to him about applicants, including those deemed not qualified.
The consultation paper offers the first detailed view of what the government has in mind regarding changes to the judicial appointment process, an idea Downey initially floated late last year and for which he received major pushback from legal organizations.
“They are not going to appoint people who disagree with their politics, which has nothing to do with being a good judge or not,” said John Struthers, president of the Criminal Lawyers’ Association.
Struthers highlighted in a letter to Downey that recent appointments by the government to other bodies give him cause for concern, including appointing an active-duty Toronto police officer to the Ontario Human Rights Commission while it investigates allegations of racial profiling by Toronto police.
The process proposed by Downey would resemble some elements of the federal judicial appointments process, in which the federal justice minister sees all applicants classified as “highly recommended,” “recommended” and “unable to recommend” — but critics have argued Ontario’s process is more robust.
“The federal appointment process should be moving in the direction of our province’s (appointments committee) — not the other way around,” Struthers wrote in his letter to Downey.
Legal groups agree with some of the minor changes proposed by the government, such as allowing lawyers to apply electronically for a judicial position. The Ontario Bar Association, which said it is against the idea of re-assessing “not qualified” candidates, emphasized its support for the proposal that there should be regular public reporting by the committee of diversity statistics related to applicants.
A similar committee also screens applications for justices of the peace, who preside over bail hearings, sign off on search warrants and hear non-criminal cases known as provincial offences. That committee currently classifies candidates as “not qualified,” “qualified” and “highly qualified” and the attorney general can only select from the “qualified” or “highly qualified” lists.
Downey is proposing to do away with the “highly qualified” category, and that he be able to require the committee to re-assess a candidate deemed “not qualified” and to receive information about applicants.
The government also proposed that the attorney general could require the committees to consider any additional selection criteria for positions, beyond what is enshrined in legislation. The current legislation says the judicial appointments committee should assess candidates based on criteria that includes “professional excellence, community awareness… and recognition of the desirability of reflecting the diversity of Ontario society in judicial appointments.”
The president of the Advocates’ Society, a national organization of lawyers, said these changes will lead to a decline in public confidence in the independence of judges.
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“It would inevitably raise before the public the prospect that the selection process is being manipulated to promote the selection of candidates that the government of the day prefers and to discourage the selection of others,” said Scott Maidment.
“It threatens to politicize the judiciary over time, because successive governments formed by different political parties could each seek to specify their own selection criteria in order to appoint judges aligned with their viewpoints. Today it could be tough-on-crime, next term it’s focused on rehabilitation.
“Why is that problematic? Because the public then comes to see judges not as independent arbiters who apply the law to the facts, but as a group of political missionaries.”