Ford and Downey put their law and order promises into action in Justices of the Peace appointments

July 2, 2021

When someone tells you what they will do, you should not be surprised when they do it.

In a recent late-night announcement, Ontario Premier Doug Ford and his Attorney General Doug Downey appointed 41 Justices of the Peace. It was a shocking announcement, not only for its scale but for the qualification of some of the new JPs.

Over a third of the new appointees have military, policing, national defence, or corrections backgrounds. Make no mistake, Ford and Downey are trying their hand at a Republican-style remaking of the judiciary.

The Dougs have long been obsessed with consolidating power to appoint judicial officers of their choice — qualifications be dammed. And the whispered rumours in Ontario’s legal trenches were of a growing frustration because they could not appoint their friends and donors to the bench.

Of course, Downey tried to be a little more subtle when he talked publicly about his proposed changes to the judicial appointment process. Downey said that the justification for monkeying with an appointment process that no one else thought was broken was the promotion of racial diversity — a disingenuous claim from a government with a spotty track record in acknowledging the harms and prevalence of racism.

But in an appearance on TVO’s The Agenda, Downey let his mask slip. He said he wanted to be able to pick judges who reflect the same values he has. Those values appear to be cruelly cutting legal aid, restricting access to justice, embracing the notwithstanding clause, talking tough on crime, and patronage.

Ontario’s appointment system for justices of the peace and judges has acted as a bulwark against the type of partisanship and patronage that has become a defining feature of the judicial appointment system south of the border. The  Judicial Appointments Advisory Committee and the Justices of the Peace Appointments Advisory Committee were largely independent committees that evaluated, ranked, and recommended judicial applications. The problem for Downey and Ford was that if your friends failed the screening tests, they could not be appointed.

That all changed this year when the government passed legislation to change the composition of the appointment committees and the rules governing judicial appointments.

The Ontario government amended the Justice of the Peace Act as part of its COVID-19 Economic Recovery Act. Not even the most disingenuous Ford puppet could credibly explain what the appointment of JPs had to do with pandemic recovery.

Similarly, the government slipped changes to the judicial appointment process into the Accelerating Access to Justice Act, which was billed as a necessary response to the emergence of COVID-19 and desperately needed to “address delays for Ontarians waiting to resolve legal issues.”

And now, as promised, Ford and Downey have used their power under the weakened appointment system to flood the courts with law enforcement JPs.

An exhaustive evaluation of the qualifications of the new appointees will take time. It is still unclear if Ford has repeated past mistakes and handed out jobs to people who have obvious partisan, personal, or monetary ties to him and his government.

There will be meritorious appointments in the new bulk announcement. Unfortunately, they will also wear the black mark of this new process.

I received a private message about one of the newly appointed JPs, describing him as a well-respected small-town lawyer. That might be very true. I remember people said the same thing about Doug Downey when he replaced Caroline Mulroney as attorney general. And then Downey messed with the appointment process, invoked the notwithstanding clause, and enabled Doug Ford’s worst instincts.

I have not heard very many positive things about Downey lately.

In Ontario, justices of the peace wield an incredible amount of power. In most jurisdictions, they decide if an accused should get bail or wait months and months in Ontario’s inhumane jails for their trial.

JPs act as a check on police power by authorizing search warrants, production orders for personal data, and the installation of covert tracking devices. JPs hear almost all of the provincial offences in Ontario’s courts, including traffic tickets, workplace safety, and environmental offences.

Make no mistake; the 41 JPs appointed last week will wield an enormous amount of power. They are also all tainted. They were appointed under a less robust, less independent, and less transparent system. They were appointed under a system that the government changed through an omnibus COVID economic recovery bill. And they were appointed by a government that has been notorious for appointments based not on merit but friendly connections.

Last week might have been a good one for law enforcement and ex-police officers, but it was a dark blow to public confidence in the judicial system.

If it ain’t broke, we can only conclude the fix is in — and Ontario’s judicial appointment system was not broken until Ford and Downey got their hands on it.


This opinion first appeared in Canadian Lawyer