Ontario shouldn’t turn back the clock on naming judges

Posted on November 20, 2019 in Governance Debates

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TheStar.com – Opinion/Editorials
Star Editorial Board

The Ontario government should tread very carefully if it wants to make changes to how the province’s judges and justices of the peace are appointed.

Attorney General Doug Downey says he’s considering changing the appointments system, and that raises two very big questions:

Where’s the evidence that the current system is broken?

And why should anyone trust this government to make it better?

To the first question, Downey has not made a compelling case. He told a legal conference last week that the existing process needs to be “modernized.” He said it’s subjective, takes too long and leaves too many qualified lawyers out of the mix when selecting judges.

It’s true the system Ontario uses now to appoint provincial court judges goes back some time. It was developed over seven years, culminating in 1995 when Ontario set up a 13-member Judicial Appointments Advisory Committee, comprised of lay members, judges and lawyers who vet applicants and recommend a short, ranked list of candidates to the attorney general.

As it turns out, that system has been a resounding success. It is widely credited with virtually ending political patronage in choosing provincial judges, something that used to be rife in Ontario, as elsewhere.

The advisory committee advertises judicial vacancies and actively urges women and minorities to apply. It has even done outreach work among underrepresented communities to make sure more of their members apply. This, not surprisingly, has resulted in a judicial bench more representative of society as a whole.

Downey argues the system is too cumbersome, and involves an “antiquated” paper-based process that requires candidates to fill out a 20-page application form with 14 hard copies. Plus, he says, it all takes far too long to make appointments.

By all means streamline the applications; in 2019 it makes no sense to be filling out multiple copies of paper forms.

But that’s not Downey’s real beef with the system as it is now. He says he has rejected three sets of names recommended by the advisory committee, and wants to have a longer list or a pool of applicants from which he could make a final choice.

The effect of that would be to give the attorney general more leeway to use his own discretion in naming judges and JPs. It risks turning back the clock and re-politicizing a system that has been virtually free of partisan considerations for some time.

It would be, in other words, a step backwards toward the bad old days when political connections mattered as much (or more) than legal excellence.

Which brings us to the second question about this proposal: can the Ford government be trusted with such a change?

And there the answer must be a definite no. The first year of the government’s mandate was seriously marred by a string of appointments of people with personal ties to Premier Doug Ford or his former chief of staff, Dean French. Most worrisomely, the premier tried and eventually failed to name his old friend Ron Taverner as commissioner of the Ontario Provincial Police.

Ford fired French in June and the government has clamped down on potential cronyism in appointments. But all that left a lingering stench, one that quite naturally raises questions about whether the government’s words can be taken at face value when it denies seeking any more influence over, say, judicial appointments.

Judges and justices of the peace play much too important a role to be treated as political plums for the partisan faithful. Ontario worked hard to get rid of that way of doing things, and the government should not bring it back under the guise of “modernizing” a system that is essentially sound.


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