Ontario’s attorney general backtracks on proposed changes to appointing judges

Under the proposed changes, Ontario’s Attorney General Doug Downey would be able to see a ranked list of six recommended judicial candidates — up from the current two.

Ontario’s attorney general is looking to amend the way provincial court judges are appointed — changes that walk back some of the government’s earlier and more controversial proposed modifications to the system.

The proposed changes, announced by the government Thursday, would require the independent judicial appointments committee — made up of judges, lawyers and members of the public — to submit a ranked shortlist of six candidates to the attorney general to fill a judicial vacancy.

Current legislation requires the committee — which assesses judicial applications and interviews applicants — to submit a shortlist of at least two candidates. The attorney general is allowed under current legislation to send the list back and ask for a new one, a power he would retain under the proposed changes.

Attorney General Doug Downey would also be able to see the names of all candidates deemed by the committee to be “highly recommended” and “recommended,” under the proposed changes, while in the current system the only names he gets to see are those on the ranked shortlist.

“At the end of the day, I’m accountable to the legislature for the public appointments of judges and justices of the peace, and I think it’s appropriate I see those who they recommend,” Downey told the Star in an interview, saying he consulted with multiple organizations and individuals on the proposed changes.

No date has yet been set for the tabling of the new legislation to make these changes.

Downey would not be able to see the list of candidates deemed by the committee to be “not recommended.”

This is a reversal of an amendment the Ford government had initially floated in a “consultation paper” with legal groups earlier this year that were labelled by critics as a threat to the independence of the judiciary.

The consultation paper, which was obtained by the Star in January, had proposed that the attorney general would be able to see the list of all candidates who applied for a judicial vacancy classified as “qualified” and “not qualified,” and he would have the power to require the committee to re-assess someone deemed “not qualified.”

That proposal drew the ire of legal organizations, who said it would open the process up to meddling and patronage appoitnments.

“It got complicated where it raised concerns for people, and integrity is key to the system and so it made sense not to leave it in the proposed changes,” Downey told the Star. “We didn’t want to raise any concern that anybody but the committee makes the decision on who is recommended or not recommended. That’s exactly why we left it out of the final proposal.”

Another proposed change that is different from the government’s earlier proposal is that Downey would have the power to recommend to the committee that they consider additional selection criteria when vetting candidates, and the committee can decide whether or not to accept it.

The earlier proposal said the attorney general could actually require the committee to accept the additional selection criteria — a move that was also criticized as a way for the government of the day to ensure that the committee recommends candidates who are in line with the government’s stance on issues.

Downey said any additional criteria that the committee accepts would be posted online. He said the government has left the decision on criteria up to the committee under the proposed changes, but that he also wanted to be “open and transparent in things that I’m looking for.”

“It’s certainly not binding,” he said. “It’s just my thoughts and I want to share them with the committee and they can choose to adopt them or not.”

Downey said one potential area to recommend as additional selection criteria could be knowledge of victims’ rights, or competency in technology.

The attorney general has spoken publicly for months about the need to change the appointments process, calling it opaque and complex.

But major legal organizations who represent lawyers who appear in the Ontario Court of Justice every day, such as the Criminal Lawyers’ Association and the Advocates’ Society, say that there’s no need to modify the process as it has led to quality, merit-based appointments.

The court itself previously told the Star in a statement that Ontario’s current process is the “gold standard” and is internationally recognized.

When pressed on who exactly has been calling for changes to the appointments process, Downey said:

“It wasn’t an area where people were writing to the newspapers, but I can tell you that individuals were frustrated. It’s complex, it’s not transparent as much as it should be, and some people were dissuaded from applying because of that.”

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When asked if there were specific people who have been applying whose names are not making it to Downey’s desk under the current system, he said he has no idea who has applied for a position, which would remain the case under the proposed changes.

The government is also proposing that candidates would automatically be considered for future vacancies for the same court location for which they’ve already applied within one year, without having to submit a new application.

Legal organizations have said they’re on board with some of the more minor changes proposed by the government, such as making the judicial application process electronic. The government is also proposing that the judicial appointments committee would have to publish diversity statistics about candidates.

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