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| John Hill |
The admission that Ford did not intend to appoint Liberals or NDP partisans to the committee raised the hackles of the leaders of these parties. Green Party leader Mike Schreiner pointed out these latest appointments follow in line with partisan picks the premier has been making since he took office.
Haven’t we seen it all before? During the reign of King James I in the early 1600s, Archbishop Bancroft, the Archbishop of Canterbury, said it is evident by the word of God in the scriptures “that judges are but delegates of the king.” Rex est lex loquens — the law is what the king says it is.
This presumption was challenged by the Chief Justice, Sir Edward Coke, who challenged the king's authority. Coke said, “the King cannot take any cause out of any courts and give judgment upon it himself…” For such impudence, the king ultimately had Coke sent for imprisonment in the Tower of London. Eventually, Sir Edward Coke was cleared when a court proclaimed, “neither in law nor conscience was [Sir Edward] to be charged of anything.”
With the notion of the “Divine Right of Kings” challenged, a new theory emerged — the separation of powers. Parliament would make the laws, and an independent judiciary would enforce them. But this, too, was open to interpretation. It was still governmental leaders who appointed the judges. The recent polarization of opinions in Canada and the United States has led to an acceptance of political interference in the judicial process — not so much by dictating the judgments but by assuring that the decision-makers would come up with the “right” opinion. Donald Trump saw to it that a special list of conservative judges was consulted in appointing three Supreme Court judges, leading to the overturn of Roe v. Wade.
During the COVID-19 pandemic, instructions went out from the Ontario Ministry of the Attorney-General that justices of the peace should be reluctant to refuse bail because jail overcrowding would result in massive disease outbreaks in provincial institutions affecting inmates and staff alike. Staff would return home after the end of their shift and thereby provide an accelerant of the spread of the virus to the community at large.
Observers, most notably police spokespersons, quickly branded the policy “catch and release.” The law-and-order crowd promptly took up the cause of “jail, not bail.” With federal and provincial elections expected in the next two years, a get-tough-on-crime approach seems like a winning hand for politicians.
Premier Ford’s reversion to the concept that the law is what he wants it to be might be restated as Primarius est lex loquens. The electorate remains free to vote for candidates supportive of the voters’ intentions to make laws consistent with their views. However, dismantling the long-established separation of powers by putting the premier’s thumb on the scale when appointments are made is a step too far. Hopefully, a potential Sir Edward Coke will stand up to such presumed authority.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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