Advocacy organization brings suit in response to premier's comments, mirrors federal lawsuit
Democracy Watch will file a constitutional challenge of Ontario’s judicial appointments system, following comments from Premier Doug Ford that it is “part of democracy” for his Conservative government to appoint conservative-minded judges.
Co-founder of Democracy Watch, Duff Conacher, says the lawsuit will mirror the one his organization brought against the federal government in November 2020 on the same grounds: that the process is politicized and unconstitutional.
“The argument is really rooted in the constitutional principles of judicial independence and the rule of law,” says Nick Papageorge, a lawyer for Democracy Watch and associate at Ross & McBride LLP. “Our position is that there should be as little political partisan influence in the judicial process as possible.”
“There shouldn't be liberal judges or NDP judges or Conservative judges. There are judges.”
He says everyone should be able to appear before a judge on whatever matter and be confident they will receive a fair, impartial hearing, untainted by political or partisan interest.
Democracy Watch is a non-partisan non-profit that advocates for democratic reform, government accountability, and corporate responsibility.
In its federal lawsuit, Democracy Watch asks the court to recognize a fourth element of judicial independence. Up until now, says Conacher, courts have said that the three elements of judicial independence are security of tenure, control over the administration of the courts, and a guaranteed budget level to pay for judges and the operation of the courts. They are asking the court to add another factor, that the appointment process must be non-partisan and apolitical to the extent that the public has confidence in the “structural independence and impartiality of the judiciary,” he says.
Democracy Watch lost at the Federal Court. Conacher says the court conceded that the system is “political and cabinet-controlled,” but that s. 96 of the Constitution Act, 1867 states that the cabinet has the power to appoint judges. They have appealed to the Federal Court of Appeal.
The decision to organize a challenge to Ontario’s judicial appointments process followed remarks Premier Doug Ford made a few weeks ago. Asked to respond to media reports that he had appointed two former staffers to the Judicial Appointments Advisory Committee (JAAC), Ford said his Progressive Conservative provincial government had been elected to “get like-minded people in appointments,” and that he would not appoint “some NDP or some Liberal.”
Ford reiterated the point several times over the next week.
In 2021, Ford’s government legislated changes to JAAC that increased the number of candidates it recommends for a vacancy from two to six. The attorney general can reject the JAAC’s candidate list and request six more names.
Ford’s recent comments also included that Liberal governments also appoint like-minded candidates to the bench.
“To the extent that that's true, it's not a race to the bottom,” says Wade Poziomka, partner at Ross & McBride LLP and counsel to Democracy Watch. “In my view, that's unacceptable. There's a higher standard.”
