It's the job of the elected government to staff Ontario's judiciary as it sees fit
Ontario Premier Doug Ford wants judges to keep criminals in jail, and aims to make bench appointments accordingly. Prime Minister Justin Trudeau wants judges and jails to racially reflect the country, and aims to make bench appointments accordingly.
To progressives, only one of these men is undermining the administration of justice — and it’s not Trudeau.
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Ford, you see, is currently taking fire for appointing two former staffers to Ontario’s advisory committee for judicial appointments. Matthew Bondy, former deputy chief of staff to the premier, will now serve as chair, and Brock Vandrick, the premier’s former director of stakeholder relations, will have a seat as well. And really, this isn’t a big deal at all.
It’s no secret that judicial appointments are made by partisans — bluntly, this is how Canadian democracy works. You elect members to the legislature to govern, part of governing involves staffing the branch of government that resolves disputes. In the 1980s, Ontario chose to add a committee to the process, whose job it is to assemble a list of potentials from which the attorney general makes the final selection. No matter how you spin it, our system specifically requires a politician to decide the composition of the bench.
Ford understands this, and he’s not sorry for acting accordingly. Responding to a reporter’s question last Friday, he expressed his intent to add tougher judges to the bench. His reason? Ontario has a crime problem, and this is partially the fault of lenient sentencers and generous bail-givers.
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“We got elected to get like-minded people in appointments,” he said. “I’m not going to appoint some NDP or some Liberal.
“That’s part of democracy, … I’d say that no matter what party’s in. If the feds want to appoint Liberals up in the federal government, that’s up to them. I’m appointing like-minded people that believe in what we believe in: keeping the bad guys in jail.”
This has naturally triggered a slew of legal interest groups and progressive media members to mourn the state of the justice system. Suddenly, after their years of demanding diversity-based appointments to the judiciary and rapturous media excitement for properly-diverse candidates, it is once again bad for the executive branch of government to consider the personal philosophy of candidates.
The president of the Ontario Bar Association, Kelly McDermott, insisted to the Globe and Mail that appointments should be made free of “party loyalty, ideology or government influence.” The federal chapter, meanwhile, has previously called for the federal government to ensure that the bench reflects the “diversity of the population it serves” — that is, an ask for government to use its influence to carry out the demands of ideology.
Over at the Toronto Star, the editorial board didn’t seem to mind that an underqualified-but-Indigenous justice was appointed to the Supreme Court of Canada in 2022 on the basis of identity. Suddenly, though, the paper is now concerned that Ford is undermining the independence of the judiciary by … appointing like-minded judges who he believes will deliver justice.
Progressives were similarly upset a few years ago in Alberta, when then attorney general Doug Schweitzer purged the ol’ NDP judicial selection panel and appointed his own members — as was his right as minister. Still, the gender studies professor on the committee (yes, that’s who was screening the NDP’s judicial picks) was outraged at her ouster, and CBC found a couple of progressive experts to lecture readers on the “proper” method for staffing the bench.
If anything, the problem with judicial screening committees is that they are sometimes marketed, inaccurately, as neutral bodies. That’s the Trudeau playbook on federally-appointed judges: assemble committees guaranteed to be progressive in philosophy, instruct them to enforce top-down diversity mandates and tell the country that appointments are now “independent and nonpartisan.” In practice, the committees are politically aligned, and three-quarters of federally-chosen judges since 2016 have donated to the Liberal Party.
Trudeau’s not out of bounds for politically skewing his appointments (it’s certainly a problem that he’d compromise on quality to meet demographic targets, but it’s up to the electorate to deal with that). He is wrong, however, for misleadingly claiming to have de-politicized the process. All he did was add a layer of administration to diffuse responsibility for court appointments to a wider group of lesser-known people, to end in a similar, less-accountable result.
This is a problem identified by former prime minister Jean Chrétien, who expressed his frustration with the new way of doing things in 2018.
“If you have a bad judge in Canada, you know who is responsible. You know. It is the minister of justice and the prime minister,” he told CTV. “Now they want committee of nobodies who will recommend, who will be responsible…. You don’t know who these guys (are), very often.”
That’s the situation that the Star and co. want, because their understanding of judicial independence is detached from democracy.
The truth is, different governments have different priorities when it comes to choosing who gets to sit at the top of the judicial branch of government. For Liberals, lately, diversity is a primary consideration and competency second. For Conservatives, legal philosophy is the dominant consideration, while skin colour and sex aren’t.
Neither side is going to like the factors on which the other bases its choice. But let’s be real: Ford is doing exactly what he’s been elected to do.
National Post
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