An appeal last week by the Ontario Deputy Judges Association to the Ontario Court of Appeal has the potential to significantly change the reappointment process for more than 400 deputy judges across the province, says a Toronto commercial litigator.
David McCutcheon, a lawyer at Fraser Milner Casgrain LLP who represented the Ontario Deputy Judges Association in its appeal application against the attorney general of Ontario last week, says there isn’t a uniform process across the province for the reappointment of deputy judges.
He says the current system calls into question whether or not that process is sufficiently independent when a regional senior judge makes the decision not to reappoint a deputy judge of the Small Claims Court.
“The issue here is whether or not the process under which deputy judges are reappointed is sufficiently independent,” says McCutcheon.
“Right now, there is no real process in place for the reappointment of deputy judges across the province.
So, that process that was used by a regional senior judge in one area of Ontario could be very different than another judge’s process in another area of the province. My clients argued there should be some safeguards in place to address that.”
The Ontario Court of Appeal heard oral arguments from the association and the attorney general in Toronto on June 18. Associate Chief Justice Dennis O’Connor and justices Marc Rosenberg and Janet Simmons have reserved their decision.
The appeal follows an application by the association to the Ontario Superior Court last year.
At that time, the association had argued the reappointment process for deputy judges failed to include “minimum constitutional safeguards afforded to other judges and justices of the peace.”
As a result, it sought to have input into the reappointment process for deputy judges by an independent body rather than solely from a regional senior judge.
The application also sought to declare the current reappointment process to be invalid and an order amending the Courts of Justice Act on the grounds that it was unconstitutional.
The attorney general opposed the application. It argued the current reappointment process complies with all constitutional requirements.
Writing in Ontario Deputy Judges Association v. the Attorney General of Ontario last year, Superior Court Justice Kevin Whitaker agreed and dismissed the association’s application.
“It may be presumed that a judicial officer will act in the best interests of the administration of justice and that this consideration — what is fair and just — shall occupy the first priority in exercising a statutory power of discretion,” wrote Whitaker.
“It may also be presumed that the executive will, in part, occupy and move in the political realm. A reasonable observer should conclude that independence in matters of reappointment and revocation are better protected by the former than the latter.”
As of last year, there were more than 400 deputy judges across 90 locations in Ontario. More than 80 per cent of sitting deputy judges have served more than one term and have been reappointed.
The regional senior judge, having the approval of the attorney general, appoints each deputy judge initially. However, the regional senior judges control the reappointment process thereafter and don’t have to provide reasons as to why they reappoint a deputy judge.
According to Whitaker’s decision, there have been no recent cases to suggest that fixed-term appointments are inconsistent with judicial independence or that a reasonable observer would conclude a regional senior justice would interfere with it.
But McCutcheon says his clients argue a lack of input into the reappointment process can create significant problems for deputy judges.
“The processes are really very different across the province, which can lead to inconsistencies,” says McCutcheon.
“I’m not sure why it hasn’t been brought up before. Maybe no one wanted you to challenge it.”
But Robert Charney, counsel for the attorney general in the appeal matter, said during oral arguments last week that that’s not the case.
“The court has pointed out that it’s the executive and the reappointment process that is a threat, not the process and a regional senior judge,” said Charney.
“It could be argued that the executive has a vested interest in the outcome of a court proceeding, but a reasonable person could conclude a regional senior judge would not have the same type of interests. The Supreme Court of Canada has said time and time again that we can trust the heads of our judiciaries.”
A look at Canada’s approach to judicial independence over the last few years paints a diverse picture on the subject.
In its 2001 decision on the provincial judges reference, the Supreme Court of Canada found there was constitutional protection for judicial independence despite its visible absence from the Constitution.
In the same breath, it also found that governments should be required to set up commissions to keep politics out of the process for determining judicial remuneration.
This isn’t the first time the association has brought up the issue of judicial independence in the context of the reappointment process for deputy judges.
In November 2009, transcripts from the Ontario legislature show Ken Koprowski, a deputy judge since 1994, spoke about the same issues discussed in the association’s appeal last week.
“Among other things, no reasons have to be given by the senior regional judge for refusing to appoint or reappoint a deputy judge,” said Koprowski. “Also, there is no mechanism for that person to challenge or contest that decision of the senior regional judge.
When I think of what went on with Justice Paul Cosgrove, this is the total antithesis of that procedure. There is no mechanism to contest it.”
Cosgrove, an eastern Ontario judge, resigned from the bench in 2009 following an inquiry by the Canadian Judicial Council into allegations by then-Ontario attorney general Michael Bryant that he had vilified the state.
Cosgrove had ruled in 1999 that the Crown attorney, police, and a deputy attorney general had committed 150 constitutional violations in connection with murder charges against Julia Elliott.
Elliott was on trial for the grisly murder of her former lover at the time. A second trial later resulted in her conviction.
When it comes to deputy judges, McCutcheon argued there are no mechanisms in place for them to ensure the reappointment process is entirely independent.
“There should be some type of mechanism in place for input when it comes to the reappointment process or an independent body that will be able to assess a candidate’s capacity to perform a judicial function,” said McCutcheon. “Right now, there simply isn’t.”
Until then, McCutcheon says the association will simply have to “wait and see what the court has to say.”