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Democracy Watch calls on Ford government to stop changes that will increase patronage and cronyism in Ontario’s judicial appointments

Bill 245 will, among other changes, make system too open to political interference, violating judges’ independence and Charter right to impartial courts

Democracy Watch will file a court case against the changes if they become law

Thursday, March 11, 2021

OTTAWA – Today, Democracy Watch released the submission it will make via Zoom at 4 pm to the Committee on the Legislative Assembly that calls on the Ford government to reverse the changes made by Bill 245 that will give the Attorney General too much control and political discretion in appointments of Ontario judges.

While not ideal, Ontario’s current judicial appointment system is considered to be one of the leading systems in the world because of its independence from, and restriction of, political influence. The changes proposed to the Courts of Justice Act in Schedule 3 of Bill 245 will:

  1. increase the number of members of Ontario’s Judicial Appointments Advisory Committee (JAAC) that the Attorney General appoints from 7 to 10 (of 13 total), and;
  2. increase the number of candidates the JAAC sends to the Attorney General for each judge position from two or more to 6 or more (with the Attorney General allowed to reject all 6 recommended candidates and ask for a new list of 6 candidates as many times as s/he wants).

These two changes will politicize the appointment of judges in Ontario, opening it up to patronage and cronyism that will undermine the public’s confidence in the independence and impartiality of the courts.

Democracy Watch’s position is that the changes will make Ontario’s system for appointing judges unconstitutional, as it will violate the constitutional principle that guarantees the independence of courts, and will violate the public’s Charter right to impartial courts.

Last November, Democracy Watch filed a court case in Federal Court challenging the federal government’s system for appointing judges because it is also open to political interference that violates the constitutional principle that guarantees the independence of courts, and the public’s Charter right to impartial courts.

If Bill 245 is enacted in its current form, Democracy Watch will also file a court case challenging the constitutionality of Ontario’s new appointments system.

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 have all expressed concerns about the negative effect of the proposed Bill 245 changes on the independence and impartiality of Ontario judges.

The Ford Cabinet is proposing dangerously unethical changes to Ontario’s appointment system for judges that will make the system open to patronage and cronyism,” said Duff Conacher, Co-founder of Democracy Watch. “Democracy Watch will challenge the new appointments system for judges in court if it is implemented as set out in Bill 245 because it violates the constitutionally guaranteed independence of the courts, independence that is needed to ensure democratic good government and fair law enforcement for all.”

“The current appointments system is not ideal, and it should be changed to decrease the control that the Attorney General has over the appointment process, not increase it as Bill 245 proposes,” said Conacher.

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 current system, Cabinet ministers in Manitoba (s. 3.3) and B.C. (s. 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).

Also like Ontario’s current system, the advisory committees in Quebec and the UK submit only 1-3 candidates for each open judge position, and the minister is required to choose from that short list. 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.

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

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