Ontario introduces proposed changes to judicial appointment process

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Doug Downey is sworn into his new role as Ontario's Attorney General at Queen's Park in Toronto on Thursday, June 20, 2019. Attorneys general from Alberta and Ontario say they will discuss the timeline of the different legal challenges launched against the federal carbon tax when they meet in Saskatoon today. THE CANADIAN PRESS/ Tijana Martin

TORONTO _The Ontario government is moving ahead with controversial changes to the way provincial judges and justices of the peace are appointed in the province, a move critics fear will open the process to political interference.

Attorney General Doug Downey announced the proposals Thursday, saying the moves would expand the number of candidates available for selection while making the process more streamlined and inclusive.

“The system is out-dated and it’s slow and it’s paper-heavy,” Downey said. “It’s a bit cumbersome and complex. A lot of the initiatives deal with those types of things so we can make the system operate faster, make it more transparent, and encourage more diversity.”

Downey first floated the idea last year and was met with criticism from some in the legal community who said the government was attempting to introduce partisan appointments to an independent process.

The attorney general said Thursday these changes come after meeting with more than 20 stakeholder groups and will maintain the independence of a selection committee.

Currently, a review panel of judges, lawyers and members of the public forward a list of two judicial candidates to the government for selection any time a vacancy opens up. That number will increase to six candidates under the new proposal.

Downey will still have the option to reject the committee’s chosen candidates in favour of another list of six qualified applicants.

The committee will be required to interview candidates and establish lists of recommended and not recommended applicants.

The government said the list of recommended candidates will establish a pool that could be considered for any vacancies within a year without requiring an applicant to re-apply. Downey said that setup will result in a faster appointment process that doesn’t sacrifice independence or transparency.

“We’re allowing the committee to do its independent recommendations,” Downey said. “People felt that added and kept integrity in the system.”

The government said the changes will be included in new legislation which will be introduced at a later date.

William Trudell, chairman of the Canadian Council of Criminal Defence Lawyers, said he is concerned about the level of influence the attorney general will have over the process.

“This is a legacy,” he said. “It’s going to last longer than Doug Downey is attorney general or Doug Ford is premier. People will be looking to see whether or not there’s patronage. … I think that we have to be very, very careful to look at the legislation to see whether the attorney general is exerting more control over the process.”

Trudell said that expanding the list of recommended candidates and modernizing some of the application processes are good ideas, but argued the system does not need broader change.

“This is a remarkable process, a remarkable committee, that has produced remarkable judges,” he said. “What’s wrong with it?”

The president of the Advocates’ Society, a group which represents lawyers, said the changes risk undermining public confidence in the judicial system.

“There are few things more essential to public order than public confidence in an independent judiciary,” Scott Maidment said. “That’s what gets undermined when you move to a politicized process.”

Maidment said by expanding the list and making it available to the attorney general, it opens the door to judicial appointments being awarded based on partisan considerations.

“The further you go down the list the more the quality might fall off,” he said. “When you give a long list like that to the minister, you’re basically undermining the independence of the expert panel.”

NDP Leader Andrea Horwath said Ontario has a well-respected judicial appointment system that is not in need of change.

“Why fix something that isn’t broken,” she said. “If this is a way for the government to find ways to have more nepotism, to have more of their friends appointed to positions on the bench, that’s extremely frightening.”