Advocates' group, Criminal Lawyers' Association, CCLA, and FOLA all fired back at the premier
Several legal organizations have spoken out about Ontario Premier Doug Ford’s repeated statements since last Friday that he wants the judicial appointment process to produce judges who are ideologically aligned with his Progressive Conservative Government.
On Friday, the premier was in Brampton speaking to media about the city’s progress toward its housing goals when he was asked to respond to media reports that he had appointed two former staffers to the Judicial Appointments Advisory Committee (JAAC). The reporter said the move had been deemed “blatant patronage,” but Ford said it was “part of democracy.”
“We got elected to get like-minded people in appointments,” he said. Ford’s former deputy chief of staff Matthew Bondy is now the chair of the committee that provides the attorney general names for provincial judicial appointments. He began his term on Feb. 1. Brock Vandrick, previously the premier’s director of stakeholder relations, joined the committee Dec. 6. 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.
“I am not going to appoint some NDP or some Liberal,” said Ford. “I have made it very clear where I stand with judges.”
Ford reiterated his view that he wanted “like-minded judges” in question period on Monday. On Tuesday, he said he was “tripling down” and got a standing ovation from Tory MPPs. “We're going to triple down on making sure communities are safe,” Ford said. “I'm sick and tired of judges letting these people out on bail. We're going to hire tough judges. That's what we're doing.”
In response to Law Times’ request for comment, Office of the Premier press secretary Alexandra Sanita said: “The Premier’s comments stand.”
On Monday, the Criminal Lawyers’ Association sent a letter to the premier saying his comments confirmed the Progressive Conservative government’s intention to politicize the process of appointing judges. The CLA said the JAAC, which was formed in 1988, has “long been lauded as the gold standard in judicial appointments.”
“Judicial independence is a cornerstone of our constitutional democracy,” said the CLA. “We echo the concerns of other Ontario legal organizations and urge your government to appoint qualified, principled, impartial judges of the highest calibre regardless of political affiliation. Judges must be free to make fair and impartial decisions – often difficult decisions – without concern for whether or not their rulings align with the Government of the day.”
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President of the Advocates’ Society Dominique Hussey says judges should be selected based on “their personal excellence, their qualifications, their impartiality, and their representation of Canadian society – certainly not on the basis of partisan politics.”
Hussey, the CEO of Bennett Jones LLP, says this view is not controversial within the legal community. She says Ford’s statements could lead to an erosion of public faith in the justice system because the public’s understanding that the system is based on judicial independence is crucial.
“The public can't have confidence in the judicial system if they believe that judges are beholden to the party that was responsible for the appointment,” says Hussey. “If judges are making decisions based upon political policy and not about the law and the evidence before them, and if the public confidence is diminished in the justice system, that is a direct threat to public order.” The Advocates’ Society sent a letter to the premier expressing “serious concern” with Ford’s comments. Judicial independence requires a “robust and transparent appointment process” without political partisanship, and holding the same beliefs as the party in power should never factor into a selection, the letter said.
At the press conference where Ford made the initial comments, he said judges were releasing too many criminal suspects on bail while their cases proceeded through the court system. He said that in every appointment, he is looking for “tough judges, tough JPs [justices of the peace] to keep guys in jail.”
The Advocates’ Society’s letter said that a judge’s role is to apply the law to the facts of the case, not to implement government policies, such as being “soft” or “tough” on crime.
“To suggest otherwise violates the separation of powers ingrained in Canada’s constitutional order, and undermines the judiciary’s independence as the third, equal branch of government,” said the letter. On Monday, the Canadian Civil Liberties Association released its latest report on Canada’s bail system found that in Ontario 78.9 percent of prisoners in provincial jails are in pre-trial detention. CTV reported that while director of the criminal justice program at the CCLA Shakir Rahim was at Queen’s Park Monday delivering the report, he took the opportunity to speak out against Ford’s “deeply worrying and concerning” statements.
“In the view of the CCLA, it's imperative that judicial appointments remain non-partisan and based on merit to ensure that the Charter right to bail is implemented in a way that upholds the rule of law,” said Rahim.
For the legal community, the premier’s comments reflect a “fundamental and, frankly, juvenile misapprehension” of the importance of judicial independence to democracy, says Douglas Judson, chair of the Federation of Ontario Legal Associations (FOLA). In FOLA’s statement on Ford’s comments, the organization urged Ford’s government to “de-politicize and return independence” to the JAAC. FOLA added that the premier’s words undermine much of the effective work the government has done to modernize and improve the justice system.
“There is widespread support for the notion that Doug Downey has moved our justice system forward by about 30 years in three years,” says Judson, who said he spoke personally and not on behalf of law association members. “We've seen tremendous modernization. We've seen a lot of efforts on the part of the Ministry of the Attorney General to do what it can to embrace technology to make court processes more efficient, and to make the necessary investments to do that.”
The Attorney General wisely used the needs of the pandemic as a catalyst for that much needed change.”
However, he says Ford’s comments contaminate all this government’s judicial appointments. “I'm not saying those appointments aren't meritorious, but it casts a shadow over them, because it suggests that those people were somehow in the bag for political actors.”
As judges the appointees can no longer respond to that, so Judson says it us up to members of the legal profession to defend the judiciary’s independence and show the government they intend to respect it.