Proposed changes to judicial appointments process under fire at provincial standing committee

Co-founder of Democracy Watch Duff Conacher addressed the committee Thursday afternoon, and called on the province to reverse the Act’s proposed changes to the judicial appointment process. If the changes are made law, Democracy Watch will file a court case challenging the constitutionality of the new appointments system.

“Democracy Watch’s point is that the Ford cabinet is proposing dangerously unethical changes to Ontario's appointment system for judges that will make the system open to patronage and cronyism and make it unconstitutional because of that political influence and interference that will be allowed,” Conacher told Law Times.

On Friday morning, Janani Shanmuganathan made a submission to the Standing Committee on behalf of the South Asian Bar Association: Toronto Chapter. In her submission, Shanmuganathan said the increase in the AG’s influence over who is appointed “represents a step backward.”

“We are moving now much further down the spectrum toward political appointments and away from merit-based appointments. SABA doesn’t want this,” Shanmuganathan said.

Attorney General Doug Downey addressed these criticisms in an interview with Law Times, in February.

“Any change is disconcerting for some people. Certainly, people who want to protect the status quo, it's disconcerting for them,” Downey said. “I don't think that any part of our justice system is working perfectly, is sacrosanct. I think that we need more diversity in many parts of our selection of judges.”

“I've landed in a space where the great majority of the legal profession is quite comfortable. So all that I can say is, I think, those who are trying to protect the status quo are the outliers on this.”

Diversity should not be a “token gesture,” Shanmuganathan told Law Times.

“You can't just claim diversity without any evidence that these proposed changes are actually going to lead to a more diverse bench,” she says. “So, in this circumstance, we don't have any evidence that there are diverse and deserving candidates that are being overlooked by the current lists that are being provided to the Attorney General.”

“It could be that there's just not enough diverse applicants in the pool, in which case we have to shift our focus to encouraging more diverse applicants to apply. But in this situation, where we don't have enough data and when we don't know what the problem is, how can we be confident that these proposed changes are actually going to increase diversity and aren't just being used as a pretence for increasing the Attorney General's control and influence over who gets appointed?”

Democracy Watch is also challenging the federal system for appointing judges. Announced last November, Democracy Watch brought an application to the Federal Court alleging the process for filling federal courts, provincial Superior Courts and provincial Courts of Appeal is open to political influence, compromises the independence of the judiciary and violates the public’s Charter right to judicial impartiality. 

The challenge Democracy Watch will file against Ontario mirrors that which it is pursuing at the federal level against Ottawa, says Conacher. The test on judicial independence from the Supreme Court of Canada is “would a reasonable person, reasonably informed of the situation, believe that there’s an appearance of bias on the part of the judge or the court overall,” he says.

“The independence of the Judiciary and a non-partisan appointment process are ‘sacrosanct,’ says Bill Trudell, a lawyer and former member of the Judicial Appointments Advisory Committee. “The appointment process must not only be patronage free but be seen to be patronage free.”

Conacher points to the lawyers’ associations which have spoken out against Bill 245, for the influence it allows the Attorney General, as evidence of the appearance of bias which undermines the public’s confidence of the independence and impartiality of the courts. 

“We have these federations of lawyers, who are reasonable people, reasonably well informed. These are large associations, and they are saying that this will open the system to patronage and cronyism,” he says. “So, clearly, it undermines the public's confidence in the independence and impartiality of the court and judges. That makes it unconstitutional.”

Currently, the Judicial Appointments Advisory 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. In a statement provided to Law Times, Ontario Bar Association President Charlene Theodore said that although this proposal has drawn controversy, the OBA sees it as an opportunity.

“Having met the members of the OBA from all corners of the province, I see a membership full of diverse, intelligent, fair-minded lawyers dedicated to delivering justice to the public,” said Theodore. “… There is not a week that goes by where I don’t meet many diverse OBA members, I would be proud to see on the bench and would be proud to have as an OBA appointee to the JAAC.”

“I think the leaders of most other organizations could say the same about their memberships. We are underestimating the high-quality bar in this province if we imagine that a short list of six will necessarily introduce political bias.”

A six-person list allows for more diversity and Theodore adds that, as the largest and most diverse law association, it is the OBA’s job to ensure members from racialized communities are applying for vacancies. “And we are working on that with our judicial programs,” she says.

But the proposed change that would allow the AG to request an additional list of six names, rather than choose from the initial list, requires more transparency to prevent “list shopping,” Theodore says.

“We will propose an amendment at committee that requires the AG to report on the number of times they have sent back a list rather than choosing a candidate.”