To be eligible to be appointed as a provincial judge in Ontario, a person must either be a lawyer for 10 years, or a lawyer and then working full-time in a position that involves exercising powers and duties that are “judicial in nature” for a combined total of 10 years (See section 42(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43).
In 1988, a Judicial Appointments Advisory Committee (JAAC) was established to search for and evaluate candidates to be appointed as judges. The Ontario government’s Attorney General appointed 7 of the 13 members of the JAAC, and the JAAC submitted 2 or more candidates to the Attorney General for each open position. While not ideal, the system was considered to be one of the leading systems in the world because of its level of independence from, and restriction of, political influence.
The Ontario government enacted Bill 245 in 2021, and Schedule 3 in the bill changed Ontario’s previous judicial appointment system. The changes proposed to the Courts of Justice Act in Schedule 3 of Bill 245 made the Ontario system more political, partisan and Cabinet-controlled by:
- Increasing the number of members of Ontario’s Judicial Appointments Advisory Committee (JAAC) that the Attorney General appoints from 7 to 10 (of 13 total);
- Increasing the number of candidates the JAAC sends to the Attorney General for each judge position from 2 or more to 6 or more, and;
- Empowering the Attorney General to reject the entire list of recommended candidates and ask for a new list of candidates as many times as s/he wants.
Under Ontario’s system, the Attorney General is also allowed to consult with anyone, including ruling party members, about the candidates recommended by the JAAC.
Democracy Watch filed a submission in March 2021 with the committee of the Legislature that reviewed Bill 245 that criticized the negative effects the changes in the Bill would have on the independence and impartiality of Ontario judges.
The Advocates’ Society, the Federation of Ontario Law Associations, the Canadian Council of Criminal Defence Lawyers, the Criminal Lawyers’ Association, the Canadian Civil Liberties Association and several associations representing racialized lawyers also all expressed concerns about the negative effect of Bill 245’s changes on the independence and impartiality of Ontario judges.
All of the above parts of Ontario’s system open up the appointments system to political interference, patronage and cronyism.
Ontario’s 2021 changes made Ontario’s appointment system similar to the federal system (the federal Minister appoints 6 of 7 members of the federal Judicial Advisory Committees (JACs), and the JACs send long lists of candidates to the Minister, who then consults with many ruling party politicians and members).
Democracy Watch has an ongoing court case now at the Federal Court of Appeal challenging the federal government’s system for appointing judges because it is open to political interference that violates the public’s Charter right to impartial courts, and the constitutional principle that guarantees the structural independence of judges so that the public can have confidence in the independence and impartiality of the courts.
Democracy Watch’s position is that the 2021 changes made Ontario’s system for appointing judges similarly unconstitutionally political and partisan.
The constitutional principle that guarantees the independence of judges and the courts has been upheld in several rulings on the measures in Part VII of the Constitution. And sections 7 and 11(d) (and, indirectly, 24(1)) of the Charter have been applied in rulings to ensure impartial court hearings.
Like Ontario’s previous system before 2021, the Minister in Manitoba (section 3.3) and in B.C. (section 21) choose a minority of the members of the advisory committee for their provincial courts (ideally the Cabinet should not choose any of the members).
Much better is Quebec’s system in which the Minister in chooses at most one member (in consultation with others) of the 5-6 member advisory committee (Click here and see sections 14-16 and 26). Ideally, the Cabinet should not choose any of the members of the committees.
Also like Ontario’s previous system before 2021, the advisory committees in Quebec (section 26) and the UK submit only 1-3 candidates for each open judge position, and the minister is required to choose from that short list (and in the UK where the committee only submits one candidate, the minister must explain in writing to the committee if s/he rejects the recommended candidate).