Even from a government more trustworthy than the one led by Doug Ford, an out-of-the-blue proposal to reform how judges are appointed in Ontario would deserve some pretty close scrutiny. If citizens are to have faith in the courts, those on the bench must be regarded as free from all political influence. But when the proposal comes from a member of Mr. Ford’s cabinet, extreme caution is in order.
The idea was floated by Attorney-General Doug Downey. He told a legal conference this month that the appointment process is slow and inefficient. Applicants have to fill out 20-page paper forms, then go through a screening that sometimes takes months. Some have been turned down so many times they have given up. He sees only the top two candidates, forwarded to him for his recommendation to cabinet by an independent committee of lawyers, judges and community members. As a result, he claims, many worthy candidates are excluded.
Wouldn’t it be better, he asked, to give the AG a little more discretion? Shouldn’t he be entrusted with the choosing, rather than leaving it to an obscure committee? Why not at least create a pool of candidates to pick from? “I can tell you, they will be of the highest quality and it will allow us to create further diversity on the bench,” he said.
Almost as soon as Mr. Downey spoke, red flags shot up around the legal community. One lawyers’ group, the Advocates’ Society, told him in a blunt letter that the changes “threaten to undermine public confidence in the appointment process and have significant implications for public confidence in the quality and independence of Ontario’s judiciary.”
After all, the attorney-general is responsible for the prosecutors who present cases to judges and justices of the peace in provincial courts. Should the person in charge of prosecutions really get more power to choose the judges those prosecutors appear before? The Leafs don’t get to choose the ref, although they might win more games if they did.
Potential changes to the judicial-appointment process will not cause a buzz at any water cooler, but it matters. The independence of the judiciary is one of the underpinnings of democratic government. Judges are often called upon to rein in elected officials when they overstep their authority and trample on individual rights.
That is why it’s so important to have a selection system that keeps politicians at arm’s length.
A renowned attorney-general, Ian Scott, a Liberal, set up Ontario’s widely admired system in 1988. He created an independent advisory committee to help the government choose judges. The NDP government of Bob Rae enshrined it in legislation in the early 1990s. It has been cited by scholars and by other governments as a model.
If it ain’t broke, why fix it? In fact, why let this gang anywhere near it? Above-board appointments are not exactly their strong suit. Mr. Ford’s government was in hot water for months over an attempt to install a friend of the Premier as head of the provincial police. It had to back down from making another appointment when it came to light that a 26-year-old man selected to be Ontario’s envoy to New York played lacrosse with the son of Mr. Ford’s chief of staff.
This Premier seems blind to the need for an independent judiciary. He was scathing about a judge who dared rule against his government when it brought in legislation cutting the size of Toronto City Council in half in the midst of a municipal election campaign. “He’s the judge, I’m the Premier,” he said, threatening to use the notwithstanding clause of the Constitution to override rulings that went against him. He even said – incorrectly – that former premier Dalton McGuinty had appointed the offending judge, implying that the fix was in.
It would be foolhardy to let a government led by such a man fiddle with the way we select our judges.
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