Ontario Attorney-General Doug Downey is considering changes to the way the province appoints judges and justices of the peace, saying the process is subjective, fraught with delays and leaves too many qualified lawyers out of the running.
In a speech to a legal conference in Toronto on Thursday, Mr. Downey said the advisory committee that screens hundreds of applicants for judicial posts only recommends its top two candidates, from which the attorney-general chooses one to put to cabinet. He said the committee should instead put forward longer lists or maintain a large pool of qualified candidates, as is the case with federal judges.
“Quite frankly, I believe the advisory committee’s review and interview process is too subjective, such that qualified applicants – including perhaps some people in this room – are not even getting called for interviews, let alone recommended for consideration by me and cabinet,” Mr. Downey told a meeting of the Federation of Ontario Law Associations, according to a copy of his remarks.
Mr. Downey’s remarks are raising concerns among some legal experts about judicial independence and potential political interference in the selection process.
An Ontario government source, whose name is being kept confidential by The Globe and Mail because they were not authorized to speak publicly, said no decision on any revisions had been made, although they could be included in a package of other justice-system changes as early as this fall.
The source also confirmed that Mr. Downey, who assumed his post in June, had already turned down candidates presented by the province’s judicial appointments advisory committee to fill vacancies and asked the committee for a new list, a move he is entitled to make under the system now in place.
The federal government appoints judges to Ontario Superior Court, which handles civil matters and the most serious criminal trials. Ontario appoints judges and justices of the peace to the lower Ontario Court of Justice, which handles criminal matters, traffic tickets, bail and offences under provincial acts.
In his speech, Mr. Downey praised the federal appointment process, even though it has been criticized for naming judges with Liberal Party links and for leaving vacancies unfilled, exacerbating the delays plaguing the court system.
He said any new system that he proposes would require legally binding minimum qualifications for judges and justices of the peace, and would be at least as “robust” as the federal process.
Mr. Downey said changes are also needed to scrap Ontario’s “antiquated” paper-based application system, and to speed it up so it doesn’t take up to a year to fill vacancies.
Peter Russell, the professor emeritus of political science at the University of Toronto who designed the current process adopted in the late 1980s, said the system is meant to block the politicization of judges. And he accused the Progressive Conservative government – which has faced a series of patronage scandals – of seeking to appoint more friends or ideological allies to the bench.
“That’s bad news. They want a bunch of names so they can look down and find a nice soulmate Tory,” Mr. Russell said in an interview.
Colin Stevenson, the president of the Ontario Bar Association, said he had faith that any changes would first be put to the bar association for consultations. Mr. Stevenson, who has previously sat on the federal judicial appointments committee, was skeptical that any new system could be put into legislation before the end of the year.
“That, we would be very concerned about because we, on behalf of the bar, would be very strongly of the view that we would need to be consulted … because these are fundamental questions for judicial independence," Mr. Stevenson said.
Hamilton civil-litigation lawyer Mike Winward, the chair of the Federation of Ontario Law Associations, attended Mr. Downey’s Nov. 14 speech. He said the minister is right that being presented with just two candidates is too limiting, adding that longer lists might allow the government to appoint more diverse judges.
“If his priority is to try to have a bench that reflects the makeup of Ontario society, and he is only given two or three candidates to choose from, the risk is you have a bench that is not reflective,” Mr. Winward said.
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