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DWatch to file lawsuit challenging constitutionality of too-political Ontario judicial appointments and promotions system

Group already has ongoing lawsuit challenging constitutionality of too-political federal judicial appointments and promotions system

Premier Ford’s recent comments/actions make it clear the system is too political, which violates judicial independence and Charter rights of people in court cases

Thursday, February 29, 2024

TORONTO – Today, Democracy Watch announced that it will file a court case challenging Ontario’s too-political, unconstitutional system for appointing judges to provincial courts.  Ross & McBride LLP will represent Democracy Watch and its co-founder Duff Conacher in the case.

Recent comments by Premier Doug Ford have made it clear that the changes his Progressive Conservative government made in 2021 to Ontario’s judicial appointment system, which gave the Attorney General (AG) more power and control over the appointment process, are intended to allow the government to appoint only Conservatives as judges.

At a news conference last Friday, Premier Ford confirmed that was the intent of the changes when he said: “I’m not going to appoint some NDP or some Liberal” and “I’m appointing judges who believe in what we believe in”.  He said similar statements in the Legislature on Monday and on Tuesday and on Wednesday.

As the Toronto Star reported last week, Premier Ford’s government also recently appointed two former Premier’s Office senior staff to the province’s Judicial Appointments Advisory Committee (JAAC), one as Chair and another as a member, and they are also both registered to lobby the Ford government.

Democracy Watch will file a court case challenging the Ford government’s appointment system for judges because it is open to political interference, patronage and cronyism that violates the constitutionally guaranteed independence of the courts, independence that is needed to ensure democratic good government and fair law enforcement for all,” said Duff Conacher, Co-founder of Democracy Watch.  “The previous Ontario judicial appointments system which was in place since 1988 was more independent, but it could have been improved to make it even less under Cabinet control like Quebec’s world-leading system was made just over a decade ago.”

In Quebec’s appointment system, the Minister only appoints (in consultation with others) at most one member of the 5-6 member selection committee, and the committee only recommends three candidates for each open position (Click here and see sections 14-16 and 26).  In the UK system, the committee only recommends one candidate, and the minister must explain in writing to the committee if s/he rejects the recommended candidate.

In contrast, the Ford government’s 2021 changes increased from 7 to 10 (out of 13 total) the number of people the AG appoints as members of the province’s JAAC, and increased from 2 or more to 6 or more the number of candidates the JAAC is required to recommend to the AG for each open position.  The AG is also allowed to reject the list of candidates recommended by the JAAC and require a new list, and to consult with anyone, including ruling party members, about the candidates.  These changes open up the appointments system to political interference, patronage and cronyism (Click here to see Backgrounder for more details).

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 Advocates’ Society, the Federation of Ontario Law Associations, the Criminal Lawyers’ Association, and the Canadian Civil Liberties Association all recently expressed similar concerns about Premier Ford’s comments and actions, and they also criticized the changes when they were made in 2021.

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

Democracy Watch’s Stop Bad Government Appointments Campaign and Stop Unfair Law Enforcement Campaign