Doug Ford’s vow to pack courts with ‘like-minded’ judges is dangerous

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As is often the case when he gets in hot water, Doug Ford acted surprised, even angry, when an outcry erupted over his government’s decision to put two men who used to work in his office on a panel that selects judges for the Ontario bench.

To him, it was really quite simple. Ontario’s courts are soft on crime. “We have massive crime waves across our cities,” said the Progressive Conservative Premier. “They’re kicking doors in, putting guns to people’s heads, and guess what? They get out on bail and then they do it again.”

The obvious solution: appoint tougher judges. So, yes, he was putting a couple of his own guys on the selection panel. “I’m appointing like-minded people that believe in what we believe in: keeping the bad guys in jail.”

He just couldn’t understand why people were making such a big deal about it. The Liberals in Ottawa, he said, were free to appoint their kind of judge. He would appoint his kind. “That’s part of democracy.”

In fact, it is a very big deal indeed. It seems silly to have to say it (again), but an independent, impartial, non-partisan system of justice is a critical part of our system of government. One of the first signs that democracy is eroding is when judges start taking sides, usually by favouring the party or person in power. It is happening in many parts of the world right now.

This is something that Mr. Ford has always failed to understand. As the populist leader of what he once called “Ontario’s first-ever government for the people,” he seems to believe that he has the right to govern more or less as he pleases, without the interference of pettifogging judges.

Three times since taking office in 2018, he has used or threatened to use the notorious notwithstanding clause of the Constitution to dodge the scrutiny of the courts. “He’s the judge, I’m the Premier,” he said of one judge who dared to stand in his way when he moved to cut the size of Toronto city council in half.

What he won’t accept is that even premiers have to play by the rules. Judges are there to make sure that governments stay within their constitutional guardrails. One of their most basic jobs is to keep our elected leaders from abusing the great power they wield over our lives. In order to fill that role, judges need to be above even the hint of a suggestion that they might be in someone’s pocket.

So when a premier says he will appoint only like-minded candidates, big red flags start waving. If this move goes ahead, all judges appointed under the Ford government will be tainted by the suspicion (even if unjustified in individual cases) that they are following the Premier’s orders rather than exercising their own judgment. We want judges who are guided by the law, legal precedent and constitutional principles, not what the Premier says at a news conference.

If Mr. Ford wants to get tough on crime, let him work with Ottawa to stiffen laws, rules and sentences. Under pressure from Ontario and other provinces, the federal government has already passed bail reforms designed to crack down on the “catch-and-release” system that drives so many police (and ordinary citizens) mad.

Mr. Ford is tapping into something real when he complains that too many crimes are being committed by those who have been set free too soon. But the answer is not to pack the courts with hang-’em-high judges. The last thing we want is to follow the American example and create a politicized judiciary, with each party putting its ideological soulmates on the bench in an endless tit-for-tat competition.

Under our system of appointing judges, independent panels sort through candidates and give governments lists of the most qualified. Ontario’s panel, the Judicial Appointments Advisory Committee, is considered the gold standard. Developed under a much-admired attorney-general, Ian Scott, and a respected University of Toronto professor of constitutional law, Peter Russell, who died this winter, it has been in place since 1995.

Mr. Ford has already watered it down, giving the attorney-general more power to select who sits on the committee. Now he has compromised it further by appointing two of his former staffers. Prof. Russell and Mr. Scott must be rolling in their graves.