A plea to speak up for the independence of judicial appointments

The attorney general of Ontario, presumedly with the blessing of its premier, Doug Ford, is seeking to exert undue and quite unacceptable influence over judicial appointments. This must be stopped.

With great respect, it seems that certain organizations have endorsed the proposed changes to Ontario’s Judicial Appointments Advisory Committee process without first seeing the legislation.

The Law Society of Ontario, as reported in a Globe and Mail story on February 27, praised Attorney General Doug Downey’s “demonstrated commitment to consultation” and said it supports a system that is effective and transparent and results in the appointment of diverse and qualified candidates.

I would rather have thought that the elected governors of our profession and other organizations would have praised a remarkable system that has for years preserved the independence of the judiciary while being insulated from political interference and patronage. This existing process has led to the appointment of a remarkable bench, heralded across the country.

It would be interesting to know the input that the attorney general received from his consultations.

Some proposed changes make sense. An increase in the minimum number of names that the Judicial Appointments Advisory Committee sends to the attorney general, from two to six names, as well as increased use of electronic applications and information, are welcomed.

On the other hand, other proposals demand careful scrutiny. Attorney General Downey is on record as saying, on an earlier occasion, that he should be able to see the list of unqualified candidates in case there was an oversight by the Committee. Incredibly, he even suggested that he should be able to appoint judges who reflected his own values.

Do these comments not raise concerns in our profession?

Under the new proposals the attorney general has backed away from asking to see the list of candidates considered unqualified, but will require the Committee to include a list of all the candidates it considered eligible. Why would this be? Is it proposed that he will receive at least six recommended candidates, but can then send this list back and get the next six, and so forth?

Does this not raise issues for our profession?

The proposals will also give the attorney general more control over who sits on the Judicial Appointments Advisory Committee. Moreover, the Law Society, which currently appoints one representative, will apparently lose that position. Are these proposals of no concern to the benchers in this province?

There are suggestions that a motivation for these changes is to make the Ontario court system more diverse. But the court is diverse. Recent appointments reinforce that point.

What is very troubling is the dress that the attorney general put on the recent news release and backgrounder, “CHANGES TO ADDRESS DELAYS FOR PEOPLE WAITING FOR THEIR DAY IN COURT.”

This is disingenuous and misleading. Delays in court are more often caused, for example by the erosion of legal aid and the increase in self-represented accused, continuing disclosure problems, a lack of electronic infrastructure, and the unrelenting prosecution of administration of justice offences that continue to clog the system.

To suggest a new way of appointing judges as the remedy to this renders a disservice to the public. A real disservice to the public will occur when an individual shows up in court, wondering how that person who will judge them was appointed.

The separation of powers is essential in our democracy. The legal profession has a duty to preserve it. judges cannot speak out. Those hoping to be appointed won’t speak out. Those who don’t want to anger the government for whatever reason won’t speak out. The opposition parties at Queen’s Park don’t seem to be speaking out.

Legislation is coming.

We in this profession owe it to the public that we serve to analyze every provision and peel back the rhetoric. We will have done the right thing if we do so, and the administration of justice will notice.