Last week, Doug Ford admitted to politicizing Ontario’s judicial-appointments process. When asked about the recent naming of two former staffers to the Judicial Appointments Advisory Committee — both of whom are also registered lobbyists — he defended the move as consistent with his party’s ideological and policy goals and with the principles of democracy, saying his PC government was elected “to get like-minded people in appointments.” But his cynical exercise of executive power is anything but normal: it’s a threat to democracy and to the independence and integrity of the judiciary.
“I'm not going to appoint some NDP or some Liberal,” Ford said in defence of his decision, though he didn’t define precisely what “some NDP or some Liberal” meant — a card-carrying member? A voter? A donor?
The premier is concerned that non-partisan judges wouldn’t be sufficiently tough on crime and, by implication, is convinced that Tory judges would be. He says he’s looking, with “every single appointment,” for “tough judges, tough JPs to keep guys in jail.” He also complained that current judges and justices of the peace are “letting criminals out.”
As the Toronto Star reported Monday, the Advocates’ Society — a national organization of courtroom lawyers — wrote a letter to Ford in which it argued that the premier’s comments and his approach to appointments “pose a substantial threat to the independence of Ontario’s judges from the government and to public confidence in the administration of justice in this province.”
In case anyone thinks Ford misspoke: on Tuesday, he said his government would “triple down on getting judges that believe in throwing someone in jail.”
Ford’s defence is that ideological appointments are “part of democracy,” since voters “voted a party in.” His government has a long history of questionable partisan appointments, so the move isn’t surprising. But let’s set that history aside for a moment to understand why partisan judicial appointments, in particular, are so dangerous.
Ontarians likely expect governments to appoint judges who are qualified and impartial. I also imagine, however, that many would understand those same governments appointing judges who broadly adhere to their principles and the principles of the liberal democratic state. That happens, including federally across party lines.
If a government were to appoint a judge who openly professed to be fascist, there would quite rightly be a public outcry. If they were to appoint a small-L liberal or small-C conservative, however, few would bat an eye. Judges, like so many of us, have political leanings, preferences, and commitments. And perhaps one or two of those judges might be connected to a party, even quite closely — like Vic Toews, who served as a cabinet minister in Stephen Harper’s government before being appointed a judge in Manitoba.
What Ford is doing, however, is expressly politicizing an appointments process by sending partisans to a committee tasked with finding judges who are meant to be impartial arbiters of the law as it stands and turning that process on its head. Indeed, Ford has rejected the idea of appointing centrist or left-leaning judges (“some NDP or some Liberal”); the suggestion here is that he’s hoping his two partisan appointments will go and fetch him “tough judges, tough JPs to keep guys in jail.”
Ford’s approach has de facto ordered committee members to ignore scores of qualified candidates in the process just because they may be or appear to be ideologically divergent from the Tories. This approach is a different, more dangerous thing than broad ideological overlap or proximity between a government and the judges it appoints. It is a direct partisan, ideological intervention by the government into the realm of the judiciary, and it sets a dangerous precedent.
In a liberal democracy in which the rule of law constrains governments, the judiciary is meant to be a separate and independent branch that interprets and applies the law impartially. By expressly collapsing the wall between the executive and judicial branches, Ford risks turning the judicial-appointments process — and the judiciary itself — into a partisan circus that serves the government of the day and not the people of the province. Moreover, his move incentivizes future governments to do the same, both to undo the partisan work of the last government and to protect against the appointments of future governments.
A directly partisan appointments process will put public trust in the judiciary at risk. Why should anyone trust the rulings of a judge — however impartial or qualified they may be in reality — when the premier is stacking the appointments committee and loudly proclaiming how judges should render judgments?
Under Ford’s system, future judges may be, or may appear to be, functionaries of a political party rather than servants of the public. Why should anyone believe otherwise, whatever the truth may be? Why should someone who is accused of a crime trust the judgment of one of these judges? Why should Liberals or New Democrats trust the judiciary that emerges from Ford’s system? Why shouldn’t they stack the courts themselves when they come into power, knowing the Tories will do the same? One quickly sees the race to the bottom here.
This week, columnist Andrew Phillips wrote an extensive and cogent rebuttal of Ford’s judicial process. He points out that there has been a “decades-long attempt” in the province from Liberal, New Democratic Party, and Progressive Conservative governments to adopt and preserve a non-partisan judicial-appointments process. In fact, the effort goes all the way back to 1988. The model was “universally hailed as the ‘gold standard’ in Canada for making sure judges were named for their professional, not their political, qualifications,” he writes.
Ford is now undermining this process. The work of decades is at risk of being lost to short-sighted, cynical politicking. Both the integrity and impartiality of the judiciary are also now at risk, as is the future of public trust in the justice system. Ford should nix his partisan appointments and recommit to a process free from the interference of party insiders.
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