At the same time, the Ford government is reportedly facing possible court action from the Association of Justices of the Peace of Ontario, which wrote to the provincial government last week objecting to JPs’ effective “wage freeze” (especially for per diem JPs), as a result of the government’s ongoing failure to appoint the mandatory Justices of the Peace Remuneration Commission.
The independent remuneration commission was supposed to review JPs’ pay and benefits for the period April 1, 2023 to March 31, 2027, and make recommendations by last April. The association complained it had done everything, short of legal action, to get the government to move over the past two years, including naming its own representative to the three-person body and agreeing to a chair with the government. The government told media it is working on getting the commission going.
The allegations of political patronage in provincial judicial appointments emerged last week, after the Toronto Star reported that Ontario Premier Doug Ford’s former deputy chief of staff and another of his ex-senior political staffers were recently appointed to the province’s Judicial Appointments Advisory Committee (JAAC).
That committee screens and shortlists applicants for vacancies on the Ontario Court of Justice, from which the attorney general appoints. Following Progressive Conservative government reforms implemented in 2021, the minimum number of candidates to be shortlisted for a judicial vacancy rose to six from two and of the 13 members on the JAAC, the attorney general now appoints 10: seven “lay” members, as well as the three lawyer-members from lists of three names each submitted by the Law Society of Ontario, Ontario Bar Association and Federation of Ontario Law Associations (which groups previously could choose their own representatives). The JAAC also has two members chosen by the chief justice of the Ontario Court of Justice and one member appointed by the provincial judicial council. Before the current government’s reforms to the JAAC were implemented in 2021, the Ontario Court of Justice said the then-existing provincial judicial appointment process was “recognized nationally and internationally, and remains the gold standard for the appointment of an independent and qualified judiciary. Any changes to the current well-established and well-respected judicial appointment processes should be informed by meaningful public consultation.”
At a Feb. 23 news conference, following an unrelated announcement in Brampton, Ont., a reporter asked Ford about the two partisan appointments to the JAAC: “Are you okay with” what “has been deemed blatant patronage?”
Ontario Premier Doug Ford
Continued the premier, “I'm not going to appoint some NDP or some Liberal. I've made it very clear where I stand with ... justices of the peace and judges.”
Alluding to courts’ handling of accused auto thieves and violence attendant to the rise in auto thefts, the premier complained, “They’re letting criminals out. These guys [stealing vehicles] are kicking in doors, putting guns to people’s heads [to hand] over the keys. And guess what? When we catch them, we find out they’re out on bail for eight times!
“How would you like it if someone kicked your door in and put a gun to your head, and all of a sudden you find out that that criminal that did that is out on the streets the next day?” he asked. “It’s unacceptable! So every single appointment I can [make], to find tough judges, tough JPs to keep guys in jail — and I say guys, because 99.9 per cent are guys — I'm going to do it,” the premier vowed.
“So that’s part of a democracy — you voted a party in,” he added. “And I’d say that, no matter what party’s in [government]. If the feds want to appoint Liberals up in the federal government, that’s up to them. I’m appointing like-minded people that believe in what we believe in: Keeping the bad guys in jail. And I’m proud of the job that they’re doing. I’m gonna continue doing it!”
The Toronto Star reported that Ford reiterated his pledge during question period at Queen’s Park Feb. 26, insisting “I am going to make sure we have like-minded judges.”
Pushback to the premier’s remarks from the bar was swift, blunt and widespread.
Advocates’ Society president Dominique Hussey
“The fact that a candidate holds the same beliefs as the government of the day, or is a member of the party in power, should never factor in their selection as a judge,” Hussey asserted on behalf of 6,000 litigators across the country, including more than 4,700 members of The Advocates’ Society who practise in Ontario.
“The role of a judge is to apply the law as it stands to the facts of the case before them as they find them to be, without fear or favour; it is not to implement wider government policies, such as being ‘tough’ or ‘soft’ on crime, by means of their judgments in individual cases,” Hussey wrote. “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. Moreover, to suggest otherwise weakens public confidence in the independence of Ontario’s judges and their ability to make fair, impartial decisions.”
Hussey contended that “to ensure judicial independence, governments must — through a robust and transparent appointment process that is free of political partisanship — appoint judges who are qualified, unbiased, principled, impartial, and reflective of Canadian society.”
She concluded, “We implore your government to have regard for these principles, and to assure the public you are doing so, when carrying out your responsibility to appoint provincial judges in accordance with the Courts of Justice Act.”
Other organized bar groups, including the Ontario Bar Association, and the Federation of Ontario Law Associations (FOLA), also decried the premier’s embrace of ideologically driven and partisan appointments as a threat to judicial independence and the public’s confidence in the impartiality of courts.
FOLA, the umbrella group for Ontario’s 46 county and district law associations, called on Ford “to do better.”
“These comments are irresponsible,” FOLA said in a Feb. 23 media release. “They are harmful. And worse, they are contagious on the political right and pull apart at the threads of our democracy in a misleading and dangerous way.”
“Premier Ford’s comments, ... doubling-down on the position that judges be appointed for political and not merit-based reasons, reflect a juvenile understanding of the role of an independent judiciary and erodes confidence in the justice system,” FOLA argued. “The justice system is not a playground for politicians to bully. The rule of law is upheld when judges are placed by merit, not by fiat.”
FOLA stated that the premier’s words “set back much of the good work this government has done to modernize and improve the justice system in partnership with the courts and other legal stakeholders. They cast aspersions on all of the meritorious appointments this government has already made. They suggest that appointed judges were politically biased and take partisan positions that parallel Doug Ford’s policies, and worse, the appointees can’t even respond to the insinuation. All of this undermines public confidence in the administration of justice in a dangerous and anti-democratic way.”
Adding that Ontario Attorney General Doug Downey is, “by most accounts,” thoughtful and pragmatic, FOLA remarked that “it is disappointing that the premier had — once again — placed the position of the attorney general in an impossible situation within the legal community and forced him to defend dangerous comments about the role of the judiciary in Ontario.”
“As a legal community and a profession duty-bound to uphold the rule of law, we denounce aspersions like this from being cast on the institutions of justice and the people that do that important work,” FOLA said.
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