The Ford government is assuming complete control over the selection of the next chief justice of the Ontario Court of Justice, the Star has learned, using a new process that judges say violates basic democratic principles and “will erode public confidence” in the courts.
The Ontario Court of Justice is one of the busiest courts in Canada. Almost 300 judges handle the bulk of the province’s criminal caseload and some family matters. The court’s chief justice is appointed by the provincial government on the recommendation of the attorney general.
The eight-year term of the current chief justice, Lise Maisonneuve, who was appointed by the previous Liberal government in 2015, ends in May.
According to correspondence obtained by the Star, the judges are deeply concerned that a new “inappropriate and inadequate” process set to be used by Attorney General Doug Downey in selecting Maisonneuve’s replacement undermines the independence of the judiciary.
Rather than having the outgoing chief justice represent the interests of judges in choosing her replacement, Downey’s plan calls for judges to apply for the position directly — through him alone — and to provide feedback to him on candidates.
Describing the chief justice position as “perhaps the single most important appointment I will be entrusted with during my tenure,” Downey told the judges in a letter this month that he wants those interested in the top job to apply directly to him by January, via a special email address that only he will have access to.
He says he will notify those chosen for an interview and tell them whether any other individuals will participate in the interview panel. Downey says he will “personally and directly conduct any discreet inquiries” into potential candidates by speaking with individuals “with knowledge of a candidate’s suitability for appointment.”
“I trust that members of the judiciary can engage in this process, including providing to me their views and opinions of a candidate’s suitability for appointment, in a manner that preserves judicial independence and does not compromise their impartiality,” Downey says in the letter.
The association representing provincial court judges told Maisonneuve in its own letter this week that a number of sitting and retired judges have voiced their concerns over Downey’s new process.
The “alarming” issue is that judges — members of the judicial branch of government — are being asked to speak directly to Downey — a member of the executive branch — says the letter from Justice Julie Bourgeois, president of the Association of Ontario Judges.
“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,” Bourgeois writes.
“This bears repeating: individual members of the judiciary are invited to communicate confidentially and directly with a member of the executive branch about a matter of fundamental importance to the court.
“It is our view that the attorney general is inviting members of the judiciary to compromise their ethical obligations. It is also our view that the process as outlined undermines judicial independence and violates our democratic system of separation of powers.”
Bourgeois’s letter refers to the practice used to select a chief justice in the past, whereby judges would provide “detailed feedback” on candidates for judicial administration to the current chief justice — not to the attorney general.
It’s a long-standing convention, in order to respect the separation of powers, that only the chief justice speaks directly with the attorney general and executive branch on matters impacting the court, said lawyer Frank Addario, former president of the Criminal Lawyers’ Association and former vice-president of the Canadian Civil Liberties Association.
“Once appointed, the judiciary is independent of the executive branch and the attorney general,” Addario told the Star.
“Bear in mind that the No. 1 customer for a lot of judges in the Ontario Court of Justice is the attorney general,” he said, referring to the Crown attorneys who prosecute criminal cases and work for the Ministry of the Attorney General.
“It’s very important that if there are going to be discreet inquiries, or if judges are going to put their names forward, that they do so through their chief, and that that dialogue stay within the judiciary and not extend to the executive branch,” Addario said.
“The chief is their one representative to the executive branch.”
Bourgeois notes that Downey’s letter is silent on whether his new process envisions any meaningful consultation with Maisonneuve on the next chief.
Under the new process, judges wouldn’t know who has applied, nor who would sit on any interview committee that Downey might decide to create, she wrote. Downey’s letter to the judges also doesn’t elaborate on how the suitability of candidates will be assessed.
“The process as outlined appears to permit the government to appoint a candidate of its choosing through an opaque process that avoids meaningful consultation with the institutional court and deviates from established practices,” Bourgeois writes.
“We are highly concerned that the new process will erode public confidence in the administration of justice because of this incursion into judicial independence.”
Contacted by the Star, Bourgeois declined to comment.
The Ontario Court of Justice provided a brief statement. “The independence and impartiality of the judiciary is of critical importance to the Ontario Court of Justice. The court values and respects the distinct jurisdictions assigned to the executive and judicial branches of government,” it reads.
Downey’s office told the Star in a statement that he “relies on the same broad discretion … that his predecessors have” in selecting the next chief justice, and that in the interests of transparency, he reached out to all the judges to inform them of the process he intends to follow.
His spokesperson said Downey consulted ministry officials, laws, and the Canadian Judicial Council’s ethical principles for judges in coming up with the process to ensure that judges could participate without compromising their impartiality.
“The current chief justice has been consulted directly on this process and will continue to be consulted when and as appropriate,” said Downey’s spokesperson, Andrew Kennedy.
He declined to comment on Bourgeois’s letter as the ministry has not seen it, and said it has not heard from the judges association directly about the new process.
This latest disagreement comes in the wake of Downey’s controversial decision last year to change the process for appointing lawyers to the provincial court bench. Critics said the Tories’ changes damaged the independent process and opened up the system to patronage appointments.
The government is also facing blistering criticism this week over patronage appointments to the province’s various tribunals and mounting case backlogs.
Downey’s new process raises “the real possibility of political favouritism,” said Peter Russell, the retired University of Toronto political science professor who is the architect of the committee used to appoint provincial court judges.
“I’m very uncomfortable with that,” Russell told the Star. “I think the people of Ontario should be uncomfortable with it and demand an accounting in the legislative assembly.”
Russell said there’s no question that the Courts of Justice Act states it is the government that has the power to appoint the chief justice.
“But I think we expect more than just exercising the power in an authoritarian way,” he said. “There’s no question they have the legal power. The government has the legal power to do good or bad. I’d like it to do good.”
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