Judicial appointments unplugged

Respect for the judiciary in this country has always been a cornerstone of our democracy. Even when there are occasional, perhaps cyclical negative comments about how judges are appointed — or that they are making laws rather than interpreting them, that they are too soft on crime, uninformed about sexual assault, overpaid and perhaps out of touch — there remains an ingrained respect at the core.

By and large, judges in this country have protected the rule of law, stayed above political influence, and quietly earned and preserved the important independence of the judiciary.

I think an important part of this is, quite frankly. how they are appointed. There is no election, political campaign or acceptable public lobbying. We now have respected processes which, although different across the country, are effective.

One judicial appointment process that has been heralded throughout Canada, and I believe internationally, is Ontario’s system for provincial court appointments. Thirty years ago the late Ian Scott, who was then Ontario’s attorney general, envisioned a process devoid of patronage and open to all candidates. The Judicial Appointments Advisory Committee was eventually created by statute, which set out criteria, procedures and makeup.

This committee of about twelve — some appointed by the attorney general — responds to specific advertised vacancies, receives applications, screens them, conducts discreet inquiries in the community, checks references and then selects candidates for interviews. These private interviews then lead to a recommended list, sent to the attorney general. A minimum of two candidates must be recommended, and the attorney general then chooses from that list. Since its inception, this process has been in place and essentially un-assailed, even heralded by successive governments, the profession and the public at large.

There is an extraordinarily talented bench in Ontario as a result of this process. Many attorneys general, I suspect, would like to appoint their friends, or even reward party members. But that just can’t happen under this system, unless an applicant is recommended by the non-partisan committee.

The new attorney general of Ontario, the Honourable Doug Downey, seems to want to change this. Without meaningful and respectful consultation, he has suggested that he needs more names of candidates, perhaps names kept in a pool and not vacancy-generated. He apparently has mused that he wants to know all the applicants who applied, qualified or not qualified. He seeks to trim the membership of the committee. He may even want to move important aspects of the process from legislation to regulation. He wants to end the laborious paper applications. I suspect, when legislation is introduced, that there will be other changes suggested.

In a shockingly revealing interview with Steve Paikin on TVO’s The Agenda on November 21, 2019, Attorney General Downey suggested that he should be able to review a candidate deemed unqualified in case there was an oversight and, even more starkly, suggested that he wants candidates appointed who reflect his values.

There is no question that all processes need occasional check-ups and adjustments. I would expect that the use of technology is long overdue in the application process. I believe that more than two candidates could be mandated in this legislation, although I believe it is rare that the attorney general receives only two names. Moreover, there is room to consider feedback to unsuccessful candidates in a private, respectful manner. Certain changes, after consultation — including by a legislative committee working on any bill being introduced — might make a good process even better.

Nevertheless, this system that has shielded various governments from accusations of patronage appointments should not be discarded. I would have thought that the government of Ontario, especially after the events of its first term and its careless patronage appointments, would embrace this process. Although we should never come to fast or undisciplined conclusions about motives, the changes that Attorney General Downey is suggesting and the anecdotal reasons for these changes are unclear and unsubstantiated, thus leaving the door open to motive speculation.

Ontario’s attorney general has been reported as saying he wishes to mirror the federal system. Yet although the new process introduced by the Trudeau government involves an in-depth application form, complemented by discreet inquires by regional committees, appointments from the pool created are still questioned and probed for partisan considerations. The interview process for provincial court judges in Ontario, frankly, makes it fairer, more efficient and non-partisan, and forecloses this speculation.

These are incredibly important times in our courts. Cases are more complex; charter considerations are a feature of all of them. Investigative tools, the emergence of artificial intelligence, global considerations, changing legislation and growing public scrutiny all require judges with only the highest qualifications. Ontario’s Judicial Appointments Advisory Committee provides such a yardstick.

It is worth emphasizing, in an era of judge-bashing and the rise of nationalism throughout the world, that the essence of democracy is that the judiciary in Canada is not a part of the Executive, but rather one of the three branches that form our government: executive, legislative, and judicial.  It is independent and stands separate as an essential pillar of freedom.

Ontario has a talented, hard-working provincial bench led by a well-respected chief justice. Any consultation should start from that point, and not from suggestions that the system is broken.