Independence of judicial appointment process is 'under attack,' says Criminal Lawyers' Association

The Ontario Government’s proposed changes to the Judicial Appointments Advisory Committee undermine its independence and risk politicizing the judicial appointments process, say the president and a vice president of the Criminal Lawyers’ Association.

Introduced last week, the Accelerating Access to Justice Act includes changes to the composition and functions of the committee, which recommends candidates to the Attorney General for provincial court appointments.

“Our concern is that the independence of the appointment committee is under attack,” says CLA Vice President Daniel Brown. “This is an attempt to fix a system that wasn't broken. There was no difficulty getting highly qualified, highly diverse candidates on the Provincial Court bench. And in fact, this model of judicial appointments was the gold standard across Canada.”

“This does not need fixing,” says CLA President John Struthers. “It is a perversion and a corruption of the of the appointment process, that everyone in the system opposes.”

The Ministry of the Attorney General said the changes are intended to fill judicial vacancies more quickly, including by requiring the committee to recommend candidates vetted for a similar vacancy within the last year.

The amendments also widen the pool of candidates from which the Attorney General chooses the judges. The Attorney General will now appoint the three lawyer members of the committee from lists provided by the Law Society, the Ontario Bar Association and the Federation of Ontario Law Associations.

“Now, rather than those organizations having independent choice over their representatives, it's now subject to the AG’s approval,” says Brown. “And so that's something that undermines the independence of the committee itself.”

Aside from the three lawyers, the rest of the committee is composed of two provincial judges, who are appointed by the Chief Justice of the Ontario Court of Justice; seven people who are neither judges nor lawyers and who are appointed by the Attorney General as well as a member of the judicial council, whom the judicial council appoints.

Currently, the committee recommends at least two candidates for a vacancy, but the changes would increase that number to six. The Attorney General can reject the committee’s six-candidate recommendation and request a new list. The Attorney General does not receive the names or identifying information of candidates who are not being recommended, said the Ministry of the Attorney General’s backgrounder.

Increasing the number of candidates put before the Attorney General for consideration allows wider latitude to select favoured candidates that may not be the most qualified, says Brown.

“What it does is it allows the Attorney General to pass over highly qualified candidates in favour, perhaps, of someone who is aligned ideologically with the government,” he says. “And so, the ability to send back six names at a time, and to ask for a new list of six names, really allows the Attorney General to kind of make a deep dive through the judicial candidates looking for the one who meets their ideology.”

The changes will also allow the committee to hold virtual interviews and committee meetings and will create a digital application process. The committee will be required to publish “detailed diversity statistics” in its annual report, said the backgrounder.