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| Ken Hill |
Since his inauguration in January, Trump has been governing by fiat, issuing a flood of executive orders and avoiding or ignoring the legislative branch of government. In like manner, under the guise of cutting red tape to speed development, Ford has moved to concentrate power in his cabinet through Bill 5. That legislation would give the cabinet power to ignore or override a range of legislation in any area of the province that it chooses to designate. No need to debate any such declarations in the legislature or to seek its support or approval of any measures the cabinet decides to take! By the way, they already have a majority in that body, so one might reasonably ask why they feel they need these sweeping powers?
It’s hard to imagine the extent of the power Bill 5 would grant, but so far, they’ve mentioned mineral extraction in the Ring of Fire and the preposterous idea of a tunnel under the 401. They appear to be concerned about the ground swell of concern and opposition to the arrogation of these sweeping powers, because they have moved to limit debate in the legislature.
On another matter, Ford tipped his hand last month when he sounded off over an adverse court ruling concerning his intrusion into municipal jurisdiction to try to eliminate a number of bike lanes in Toronto. He ranted about judges acting on ideology and went on to refer to “bleeding heart” judges he considers to be soft on crime. And here is where his authoritarian leanings came into the open. CBC reported that during a news conference announcing proposed changes to bail reform, Ford said: “Last time I checked there hasn’t been any judges elected. Maybe that’s the problem — we should do what the U.S. does. Let’s start electing our judges, holding them accountable, and that’s my rant for the day, because I’ve just had it.”
Well, shall we look at what’s happening south of the border right now? An authoritarian administration is attacking the judiciary out of frustration whenever it gets a court ruling it doesn’t like, and the rule of law itself is in serious jeopardy. Bringing politics into the choice of judges, whether by election to the bench or by political appointment, only serves to undermine the authority and integrity of the judicial branch of government. How can Americans have faith in the rule of law when their Supreme Court is so clearly divided along political lines? And, in the news it’s often stated, with reference to a lower court’s decision, that it was a “Trump-appointed” or a “Biden-appointed” judge.
Our past governments were wise take measures to limit (but, admittedly, not eliminate) political influence in judicial appointments by creating non-partisan judicial appointment screening committees. However, Ford is already taking steps to move toward a more politicized appointment procedure. Witness Bill 10, which among other things proposes to amend the judicial appointment provisions of the Courts of Justice Act.
A quick reading of the legislation discloses troubling changes to the system. The current Act sets out basic criteria to guide the screening and selection process and allows the committee to set its own additional criteria. If passed, the amendment says the committee must also include “any criteria specified to the committee by the Attorney General.” There are no limits on the criteria the AG might impose, even if they are political or ideological in nature.
Further provisions appear to tip the scales in favour of the party in power by enhancing the scope of the AG’s power to make appointments to the committee. Currently, the AG selects three members from lists of candidates recommended by each of the law society, the Ontario Bar Association and the Federation of Ontario Law Associations. In addition, the AG can appoint seven laypersons (i.e., not judges or lawyers). The bill removes the ban on naming lawyers to the committee. It’s not clear to me why they are making that change, but the amendments would also require the committee to makes its recommendations on the basis of a majority vote. One can only surmise that they want to have the ability to stack the committee with people trusted to adhere to their approved ideology, who can out-vote the three members of the committee who are not chosen by the AG.
Oh, and it’s no surprise that Ford has decided to rush these changes through by limiting debate on Bill 10 along with Bill 5 and two other bills. Given his majority, there is a real likelihood that these changes will be implemented with precious little discussion, debate or public awareness.
I, for one, don’t think it’s a good idea to weaken the attempted neutrality of the judicial appointments process, and limiting debate on these consequential pieces of legislation undermines the role of the provincial parliament. It’s not as dramatic as what is happening south of the border, but it rhymes!
Ken Hill is happily retired from just about 40 years of litigation practice in Newmarket, Ont.
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