Ontario accused of politicizing justice system after changing how the chief justice is picked

Open this photo in gallery:

A judges’ group is accusing the Ontario government of distorting and politicizing the province’s justice system after the Attorney-General said he will oversee the interviewing and vetting of applicants for chief justice.

Attorney-General Doug Downey, in a letter to the judges of the Ontario Court of Justice, said he is changing the process by which he will appoint the successor to Chief Justice Lise Maisonneuve when her eight-year term ends in May.

The attorney-general has always had the responsibility of recommending a chief justice to cabinet. But in the past, the outgoing chief justice expressed their views of candidates to the attorney-general. Judges of the court who wished to share their views did so with the chief justice.

Under the new process, Mr. Downey said he is inviting candidates from the court to send their curriculum vitae and short letters setting out why they should be chosen as leader directly to him. He did not specify whether he would consult with Chief Justice Maisonneuve.

He stressed in his letter that the process is wide open, and no preliminary consideration of potential candidates has been done. He said he will notify candidates who receive interviews of the details, including whether other individuals will participate in an interview panel. He did not specify who is on the panel.

“I will personally and directly conduct discreet inquiries” on the suitability of candidates, Mr. Downey said in his letter.

Justice Julie Bourgeois, president of the Association of Ontario Judges, called the changes “alarming” and an “aberration.”

The “alarming” issue relates to the propriety of judges providing feedback directly to the Attorney-General, she said in a letter to Chief Justice Maisonneuve.

“It is our view that the Attorney-General is inviting members of the judiciary to compromise their ethical obligations,” she said, citing a paragraph in the federal ethical principles for judges (Mr. Downey’s letter cited a different section of those same principles).

“What strikes us as an aberration … is the suggestion that judges ignore the separation of powers and their ethical obligations and communicate directly with the Attorney-General,” she said.

She added that she is concerned that the new process will erode the public’s confidence in the justice system.

Andrew Kennedy, a spokesman for Mr. Downey, said the judges’ association had not sent its letter to the minister and he could not comment on it. He said the Attorney-General’s approach relies on the same broad discretion under provincial law that previous governments have relied on. He said the government consulted the Chief Justice on the change.

“Instead of accepting the status quo, we are rethinking how justice is delivered in this province by building a modern, accessible and fair justice system that works for all Ontarians,” he said in an e-mail.

He did not respond to The Globe and Mail’s question on the purpose of the change.

Last year, the Progressive Conservative government made changes to the appointment process for judges. Previously, when a vacancy arose, a non-partisan committee provided a minimum of two candidates for the attorney-general to pick from. Under the 2021 changes, the committee was required to offer a minimum of six candidates.

Also, three law associations used to appoint a lawyer each to the judicial advisory body; under last year’s changes, the attorney-general appoints the three lawyer members. Critics said these two changes gave the government greater scope to choose political friends in its judicial appointments.

The process for appointing a chief justice is not spelled out in law, except to say that it is done by cabinet on the recommendation of the attorney-general. The same holds true in Quebec, said Martine Valois, a law professor at the University of Montreal.

“To ask the judges to speak directly to the Attorney-General about who should be the next boss, this is really, I think, peculiar and inappropriate.”

Frank Addario, a senior Toronto lawyer, said the more that cabinet is involved in appointments, the greater the perception of a political dimension, and the less that they appear based on merit.

The Ontario Bar Association, in a statement, said the government should spell out the criteria for the appointment, which should include broad perspectives on the diverse lives of Ontarians and an ability to ensure timely justice.