Ontario seems to be toying with important balance of powers in a democratic state, argues Bill Trudell
Trying to convince politicians to pay attention to criminal justice issues and the independence of the judiciary may seem like an unimportant diversion from the many important international and local issues that we face as we usher in a new “Roaring Twenties.” It is not.
An independent judiciary, not controlled by or beholden to the government of the day, remains vital to all democracies, the respect for the rule of law, and the dignity of citizens who depend on it.
I was struck by a headline in the January 25th edition of the Financial Times newspaper: “Poland’s judicial clash leaves courts in chaos.” It was reported that in Poland the governing Law and Justice party has given politicians “sweeping powers” over the judiciary, which has resulted in a discouraging conflict between the government and the court, thereby destabilizing the rule of law and fracturing the clarity so important to the integrity of the system of justice.
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The importance of respect for the separation of powers was eloquently described by Chief Justice of Canada Richard Wagner in a recent article in The Hill Times. The chief justice’s comments on the “delicate balance” of governance in a democratic state merit repeating here:
Success of our democracy is found in our successful balance.
For we are three different-but equal-branches [legislative, executive, judiciary], each with tasks and power set out for us in the Constitution. The executive decides policy. The legislative branch makes and passes laws. We in the judiciary interpret those laws--but we can't tell the executive what policy to make, or the legislature which laws to pass. All we can do is strike down what is not consistent with the law and give advice on what might be done to fix it. By the same token, neither the executive nor the legislature can tell the judiciary what cases to hear or how to decide them. This is what judicial independence means.
Our three branches give us important checks and balances. Members of the executive and legislative branches -- that is, politicians -- are elected, and have to go back to citizens for approval on a regular basis. Judges are appointed and need no such public approval. This isn't some kind of personal privilege. It's because judges have a different role. The equilibrium of all three branches is what gives us our vibrant democracy, strong rule of law, and robust protections for people's rights and freedoms.
Judicial independence is critical to the balance.
Against this backdrop, the government of Ontario is currently toying with the independence of the judiciary and seemingly attempting to chip away at this important balance.
The current attorney general wants to overhaul the highly respected and universally heralded Judicial Appointments Advisory Committee process. Recently the attorney general – apparently off script in a public interview -- mused that he would like to appoint judges who reflect his values. The current appointment process, as structured, features an independent and nonpartisan committee that screens and interviews applicants to the provincial court. It then submits a list of qualified candidates from which the attorney general must choose. Candidates found unqualified are not recommended.
The attorney general, among other things, proposes to see the unqualified and to ask the committee to review a candidate so found. Unscripted again in his public interview, he gave the reason as, “in case there was an oversight by the Committee.”
This is troubling. This system can be improved, for example, by increasing the use of technology, but fundamental changes such as those proposed must only occur for substantiated, transparent reasons after meaningful consultation. Coincidentally, as we peer behind the curtain to try and understand why these changes are proposed, we can see continued criticism and political pressure from politicians on the judiciary. I suggest the attorney general of Ontario, because of his comments, should be replaced, but coincidentally the premier of Ontario has suggested that judges need to “toughen up” in regard to guns and gangs, including raising the bar on bail requirements.
Misleading and anecdotal stories are often disseminated about judges being soft on crime and repeat offenders roaming the streets. The public, of course, are not informed about how bail works, i.e., the disgraceful warehousing of persons who have not even had a trial, and they are certainly seldom assured that the Courts are actually very strict in relation to violent offenders, especially those with guns.
“Lock them up,” to borrow a nasty phrase, has become new arsenal in many politicians’ vocabularies. It is simple, effective, toxic, and wrong. Interestingly, at a recent conference an articulate and demonstratively informed former inmate referred to jail as a “university of bad ideas.” Moreover, an international expert opined that locking people up and expecting them to eventually properly live in society is like trying to teach a fish to swim -- out of water.
Politicians in this new decade need to stop using the courts and criminal justice system as tools for political gratification.
Politicians should have the will to support and enhance the justice system and promote the important separation of powers and an independent Judiciary. Moreover, they must inoculate themselves against patronage.
As we roar into the next decade, our profession must steadfastly speak out against the erosion of the principles that anchor our justice system and the fundamental independence of the judiciary.