Downey should consult with bar and bench before overhauling judicial appointments, lawyers say

MAG said system for appointing judges is “too subjective”

Downey should consult with bar and bench before overhauling judicial appointments, lawyers say
Bill Trudell

Ontario Attorney General Doug Downey’s criticisms of Ontario’s judicial appointment process have raised concerns among lawyers.

Under the current system, judges for Ontario’s Court of Justice are selected by applying for specific vacancies and being interviewed by a panel that includes MAG appointees. After a Plenary meeting at the Federation of Ontario Law Associations and in subsequent media appearances, Downey indicated he would like Ontario’s judicial appointment system to adopt aspects of the federal system for naming judges.

DOWNEY’S REMARKS

According to Downey’s written remarks to FOLA, viewed by Law Times, Downey criticized Ontario’s system, which can take a year to fill a vacancy. Despite sending 500,000 pieces of paper floating through the province, Ontario never informs senior members of the bar if their application is proceeding, said the written speech, though observers noted Downey did not deliver the remarks as written.

“If we did nothing other than adopt the federal judicial appointments process, which maintains a constantly refreshed list of senior lawyers deemed qualified for appointment to the superior court, cabinet would be in a position to appoint qualified candidates immediately upon a vacancy being identified,” said Downey’s notes. “Quite frankly, I believe the advisory committee’s review and interview process is too subjective.”

Downey’s notes added that he supports statutorily enshrined minimum qualifications for judges and justices of the peace, and that the Ontario system should remain “as, or more, robust than the one that currently exists at the federal level for superior court appointments.”

“So, although I believe we need advisory committees to assist the attorney general in identifying qualified candidates for these important jobs, we cannot have a system that lacks transparency and is paper-based, slow and expensive, and excludes many qualified candidates from consideration. And that’s exactly what we have right now,” said the written remarks.

The notes from Downey’s speech indicate that he wants to hear from law associations about regulating the judicial appointments process, and “members of the bar have an important role to play in ensuring applicants for judicial office are up to the standard the public expects.” Downey wrote that he has spent the past five months meeting with litigants, lawyers, victim support groups, police officers, Legal Aid Ontario and judges. All groups said that the justice system was “too complex and outdated” and needed reform, Downey’s speech said.

 Jenessa Crognali, press secretary for Downey’s office, said the MAG is “meeting with various stakeholders in the legal community about what a modernized process could include and will continue to consult on any potential changes.”

REACTION FROM THE BAR

But Nov. 20 letter from The Advocates’ Society indicate that its lawyers have not been contacted about the changes. The letter says that Ontario’s system has been heralded as non-partisan and “[m]any observers have also commented that the short list system used in that process has had a positive impact on the appointment of women and minority candidates and the representativeness of the provincial court bench.”

“The announced changes threaten to undermine public confidence in the appointment process and have significant implications for public confidence in the quality and independence of Ontario’s judiciary,” said the letter from The Advocates’ Society president, Scott Maidment. “It is regrettable that matters have reached this juncture without your government having consulted with the independent bar.”

Ontario Bar Association President Colin Stevenson did not indicate whether he had spoken with the AG, but said that the OBA would like the opportunity to ensure that the province maintains the quality or judges and the independence of the court, in addition to assisting in achieving better diversity, more efficiency and sufficient transparency.

Bill Trudell, a member of the Steering Committee on Justice Efficiencies and Access to Justice and a former representative on the Judicial Appointments Advisory Committee, says Downey’s proposal is concerning. 

“The federal government has a pool — and there’s an exhaustive application form, and then there’s a committee,” says Trudell. “But there is always going to be an examination of whether or not that person was patronage appointment. Even though Minister Downey is talking about having a system like the feds, we have a better system [in Ontario] — there is an interview system, so no one can suggest a patronage appointment.” 

Judicial diversity is improving and the current justices are revered, but there are many potential paths to further improve the system, says Trudell. He adds that a consultation with the bar on other ways to improve judicial diversity and efficiency need not take years to be effective. 

“Consultation, consultation, consultation: That's the message I hope that the attorney general gets,” he says.

Trudell added that the bar is likely to respond well to technology upgrades to the existing system, but it’s important that experts have the chance to weigh in on the process before changes are made. For example, says Trudell, a move to govern judicial appointments through regulation rather than statute could raise eyebrows in the profession.

“I'm not a big fan of immediate gratification — this is a this is a fundamental part of justice,” says Trudell. “You get an unqualified candidate who presides in a court, and then what happens if that unqualified candidate doesn't dispense the best justice available? What's that going to lead to? Inefficiency. Appeals.” 

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