We're supposed to see gender and ethnic diversity among judges as an imperative — but ideological diversity as a threat to democracy
Premier Doug Ford and his Progressive Conservative government in Ontario clearly think they have a political winner in vowing to appoint “like-minded” judges — which is to say, per Ford in the legislature on Tuesday, “judges that believe in throwing someone in jail when they kick the doors in, put a gun to people’s heads, terrorizing their kids, terrorizing the parents to the point that the kids don’t want to stay at home anymore.”
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Ford is unapologetic about his anti-terror agenda, and also about appointing “like-minded” people to the committee that recommends judicial appointments. The most recent such appointments are two former Premier’s Office staffers, one of whom — the committee’s new chair, Matthew Bondy — is also a registered lobbyist at Queen’s Park.
It’s a classic example of Ford taking a mile when he really only needs a few yards. Why not pursue this goal without the blatant patronage? And it’s frustrating, because his self-described “tripling down” on appointing “like-minded” judges puts a vituperative face on an entirely reasonable and well-understood notion: Governments want to appoint judges who more or less share their worldview.
The U.S. Supreme Court is certainly a cautionary example of what can happen when that principle is taken to an extreme — especially on a single issue, namely abortion. But the fact is, those extremes aren’t really available in Canada to judicial appointment committees. There can’t be more than five jurists in this country who are remotely qualified to sit as judges and who also think abortion should be illegal in every circumstance. There might be none.
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(It always strikes me as ironic that Canadian Supreme Court justices all go to the same few law schools and think mostly the same, while American Supreme Court justices all go to the same few law schools and would struggle to agree on the law of gravity.)
There are conservative jurists out there in Canada who could certainly make a difference. And if they are willing to take a harder line on granting bail to repeat violent offenders, or on sentencing those offenders — within the boundaries of law, of course — then that is an entirely reasonable policy goal for any government to pursue.
Those who believe bail, sentencing and parole provisions in this country are too strict — which is to say roughly 95 per cent of the legal academy — will note that it’s actually harder to get bail nowadays than it used to be. And that’s certainly an important data point. It’s just not as important a data point as the number of flamboyantly recidivist criminals out there making life miserable-to-intolerable while they’re out on bail or parole.
If I have a complaint about Ford’s performance on this file, and I do, it’s that tougher judges can really only move the needle so far. I’m all for incapacitating violent offenders for a good long while in prison, and not letting them out on bail if they’re accused of offending again, but the vast majority of them are going to get out at some point, most under fairly strict parole and probation conditions.
For eight years we have watched Justin Trudeau's government tear its hair out trying to find potential judges who are fluently bilingual, female and Indigenous
If bail, parole and probation conditions were being enforced half-properly, several of the most awful cases we’ve seen in recent years, and which have propelled this tougher-on-crime movement, would not have happened. The most outrageous, but not by much, might be the case of Jordan O’Brien-Tobin, who racked up 28 convictions in a single year in Newfoundland, but was free to stab 16-year-old stranger Gabriel Magalhaes to death for no reason on a Toronto subway platform last year.
O’Brien-Tobin’s parole conditions included not leaving Newfoundland. Clearly no one bothered to check.
That’s on the provincial governments to manage, Ford’s included. Unless parole and bail conditions are enforced properly in future, which costs money, these horrendous cases will keep occurring. A few conservative-minded judges won’t change much in that regard.
But good lord, is the pearl-clutching among Ford’s opponents ever ridiculous.
For eight years we have watched Justin Trudeau’s government tear its hair out trying to find potential judges who are fluently bilingual, female and Indigenous, in addition to hailing from the proper part of the country. To the evident shock and confusion of those inside Trudeau’s weirdo bilingual bubble, it turned out there weren’t exactly thousands of such lawyers!
And so we got, for example, Supreme Court justice Michelle O’Bonsawin — who, as very reasonable law professor Leonid Sirota argued in the National Post, is unqualified in every traditional respect to serve.
O’Bonsawin did however write the following on her questionnaire: “A constitutional democracy will face threats, not only from within its borders, but also from abroad which is further facilitated with social media.”
“This would have been music to the government’s ears, what with its worries about foreign interference,” Sirota wrote, “and bodes ill for the prospects of O’Bonsawin standing up to its ongoing attempts to censor online communications.”
Perhaps more to the point, O’Bonsawin wrote the following: “As Canadians, we must stop focusing on our differences and embrace diversity in order to move our country forward in a progressive manner.”
That’s a clearly stated political viewpoint. It would be silly to argue that a Liberal government should overlook a potential judge for stating such an opinion. Indeed, a Liberal government should be seeking out judges who think that way (in addition to meeting all the necessary linguistic, genital and ethnic requirements). Equally logically, a Conservative government should be seeking out judges who aren’t so outwardly progressive. If Conservative governments are willing to admit that’s what they’re doing, unlike Liberal governments, that should be considered a feature rather than a bug.
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