Doug Ford is using the pandemic as a cover for partisan changes to the judicial appointments process
The Ford government is nothing if not persistent — they are once again trying to change the way Ontario appoints judges. The only difference is that this time they are using the pandemic as cover for their partisan legislation.
Doug Ford’s attorney general Doug Downy claimed that his new bill, the Accelerating Access to Justice Act, is a necessary response to the emergence of COVID-19 and desperately needed to “address delays for Ontarians waiting to resolve legal issues.”
The reality is that Downey’s bill has little to do with enhancing access to justice. It is a transparent Trojan Horse for partisan judicial appointments and weakened environmental protections.
As it stands, Ontario’s Judicial Appointments Advisory Committee (JAAC) is considered the gold standard for non-partisan and merit-based judicial appointments. The government and arm’s length organizations both appoint JAAC members. The JAAC reviews applications for judicial positions, makes inquiries, ranks the candidates, and provides the attorney general with an impartial list of names to make appointments.
This system has served Ontario well and, in large part, is why most people see the Ontario Court of Justice as an intellectually rigorous, fair, and impartial court.
This appointment process is the system that Ford and Downey seek to break. Their new process would give the government more say over who sits on the JAAC. In other words, politicians can more easily stack the committee with friendly partisans.
The new legislation would also compel the JAAC to included more names on its list of recommended candidate, allow Downey to ask for additional names if none are to his liking, permit the government to set the criteria that the JAAC must consider, and in some cases, could allow judicial appointments without any public advertising of the position vacancy.
If the appointment system ain’t broke, and it is not, we can only conclude the fix is in.
There is not a backlog of judicial appointments to be filled. The Ford government has appointed judges at a rate not much different from previous governments. And the government’s website lists only one judicial vacancy in the province.
Downey’s newest justification for his tampering is the promotion of racial diversity amongst Ontario judges — a disingenuous claim from a government with a spotty track record when it comes to acknowledging the harms and prevalence of racism.
After all, Downey’s own words call into question the bona fides of his self-reported benevolent motivations. You see, back in 2019, Downey told Steve Pakin on TVO’s The Agenda that he wanted to be able to pick judges who reflect the same values he had. There was no mention of diversity.
As Peter Russell, the first chairperson of the JAAC, said, “[The Conservatives] want a bunch of names so they can look down and find a nice soulmate Tory.”
After all, no one does partisan appointments better than the Ford government.
Remember when long-time Ford family friend Ron Taverner was handpicked by the premier as the next Ontario Provincial Police commissioner? The only problem was that Taverner was not qualified for the job because his rank was too low. Ford’s solution was to water down the job requirements.
Or when Doug Ford’s chief of staff, Dean French, was forced to resign in the wake of damning reports of patronage appointments, like long-time Dean French friend Andrew Suboch, who was appointed as chairman of Ontario’s Justices of the Peace Appointment Advisory Committee?
We owe zero trust to the Ford government regarding any appointment process.
The same is true for environmental protection — the weakening of which is the other soldier inside Downey’s Trojan Horse.
Under the new legislation, the Local Planning Appeal Tribunal, the Environmental Review Tribunal, the Mining and Lands Tribunal, the Conservation Review Board, and the Board of Negotiation are combined into one single body.
The government says that this new omnibus tribunal will be faster and cheaper.
I am sure that is true. But it comes at a cost.
Because of the amalgamation, issue-specific expertise will be lost. So now, Ford appointees who are experts in mining will be responsible for keeping an eye on environmental protections
The legislation also strips environmentalists and other Ontarians of the right to appeal tribunal decisions to a minister of the government — a right most famously used in stopping the Spadina expressway, which would have painted a horrific scar through the middle downtown in Toronto.
The new bill undermines public participation in environmental and land use decisions by removing the ability of non-party involvement at hearings and removing avenues for the public to appeal decisions they believe would harm the environment or the health and safety of their community.
With the Accelerating Access to Justice Act, Ford and Downey have built a most transparent Trojan Horse. We only need to scratch its surface and look beyond the legislation’s title to see that the bill actually limits access to justice, rolls back environmental protections, and will more easily allow them to appoint their friends and boot lickers to the bench.
And at the same time, the Ford government has gutted legal aid, which assists impoverished and marginalized Ontario’s access justice; carried water for police forces that refuse to acknowledge systemic racism; and bungled Ontario’s COVID response, at the cost of thousands of lives.
In the end, the only thing the Accelerating Access to Justice Act will speed up is environmental destruction, the politicization of the judiciary, and the partisan line-up at the Ford government’s trough.
This opinion first appeared in Canadian Lawyer