Ontario Premier Doug Ford has defended appointing two former senior political staffers to a committee that helps select provincial judges, saying he would not appoint a Liberal or New Democrat.
The controversy surrounds Ford’s intention to appoint “like-minded people” to Ontario’s Judicial Appointments Advisory Committee (JAAC), which submits a shortlist of candidates to the Attorney General of Ontario for appointment as judges.
It is composed of seven lay members from the public (appointed by the government), three provincial court judges (appointed by the judiciary) and three lawyers from legal organizations (selected from lists submitted to the Attorney General).
Commentators expressed concern that patronage appointments to the JAAC could politicize the appointment system. Ford says he would seek to appoint “tough judges, tough JPs [Justices of the Peace] to keep guys in jail,” adding, “that’s part of democracy. You voted a party in.”
The Federation of Ontario Law Associations said Ford’s comments “reflect a juvenile understanding of the role of an independent judiciary.” Liberal Leader Bonnie Crombie warned of a “U.S.-style politicization of our courts” and NDP Leader Marit Stiles also warned of “politicization of the judiciary.”
Do these kinds of appointments add a welcome dose of democratic input into the judicial process (by the appointment of judges who reflect the elected government’s worldview)? Or do they signify unhealthy politicization of the judiciary? Both perspectives have some merit.
Judicial legitimacy
The judiciary relies on public legitimacy to undergird its decisions. A number of those decisions involve a degree of discretion and are not simply mechanical applications of the law, particularly in criminal law.
If the judiciary strays too far from the general currents of public opinion when making such decisions, confidence in the judiciary could be eroded. Therefore, appointing individuals to the JAAC who may have links to the party in power and are sympathetic to their politics isn’t necessarily troublesome.
If a new government appoints judges with a somewhat different worldview than the previous government, that is acceptable and even healthy — so long as the process emphasizes legal knowledge and fairness, and not partisan considerations.
Part of my concern, though, is that Ford’s comments about having high-profile Conservatives on the JAAC and appointing “like-minded judges” gives the impression that candidates affiliated with the provincial Progressive Conservatives may be favoured in the appointments process.
Injecting partisan considerations into the appointment process has a number of negative consequences. The appointment system can be viewed as unfair and high-quality candidates may be overlooked or even discouraged from applying.
While appointees linked to the party of appointment can be excellent judges, research suggests that partisans tend to make up a higher portion of appointees perceived to be of lower quality. Making partisanship a priority may reduce the potential to diversify the bench. This, in turn, could reduce how representative of broader society the bench is, and limit the range of experiences that breathe life into the law.
These problems have been pointed out in regard to patronage in judicial appointments by the federal Liberals and Conservatives, along with the fact that they rarely appoint individuals linked to opposition parties.
Even if the Ford government’s goal is not to appoint party affiliates, but simply individuals perceived to be “tough on crime,” his failure to emphasize that those judges would still be required to apply the law fairly and impartially can undermine faith in the judicial process.
Assessing the impact
Despite the serious reservations identified above, I remain less concerned than some others about how this will play out. Judges and lawyers compose nearly half of the JAAC, making it unlikely that unworthy candidates will be shortlisted for appointment.
Moreover, judicial independence does not require that the selection process be independent from government. Having a selection committee composed of members of the legal community and lay people is a positive development, as they can help emphasize quality and provide some buffer against a politicized appointment process.
However, the core of judicial independence requires governments not being able to punish or reward judges for their decisions once on the bench — something that is robustly protected in Ontario. Trial court decisions can also be appealed to a higher court and judges themselves are subject to an independent complaints system.
Finally, the Ford government will likely find that choosing judges who decide cases consistently in a certain direction is a difficult task. Not only do judges have guarantees of independence, but once appointed, professional norms tend to lead judges to impartially apply the law (as best they understand it) to the facts.
Often, the requirements of legislation or precedents will require a decision that governments (or even the judges) do not like. In cases where judges have some latitude (excluding evidence, bail, sentencing, etc.), research on judicial behaviour below the Supreme Court-level suggests that one cannot assume former prosecutors or Conservative appointees are going to be “tough on crime” as envisioned by Premier Ford.
Overall, if there is some incremental change in outcomes from newly-appointed judges in line with shifts in the electorate, that is a healthy feature of our liberal democratic system of government. This holds true provided the judges were recommended by a selection committee; there is a strong system of judicial independence and judicial decisions are constrained by fair and impartial application of the law. My guess is that progressives and conservatives would both agree with that, depending on who is in power at the time.