Ontario Premier Doug Ford enters a room to speak to journalists at the Queens Park Legislature in Toronto on Sept. 5, 2023.Chris Young/The Canadian Press
More than two-thirds of the judges appointed by the Ontario government since Premier Doug Ford was elected had worked as prosecutors, a dramatic increase compared with the previous Liberal government and one that some defence lawyers say is a concerning trend for the fairness of the justice system.
According to a Globe and Mail analysis of the 107 judges named since the Progressive Conservatives came to power in 2018, 76 were either Crown attorneys or had conducted prosecutions while in private practice, a proportion that works out to 71 per cent.
The rest were career criminal-defence lawyers or had practised in other areas such as family law. The list of appointments also includes family-court judges who are not involved in criminal cases.
Under previous Liberal premier Kathleen Wynne, from 2013 to 2018, Ontario announced the appointment of 122 judges. Of those, 58 – or 48 per cent – were Crown prosecutors or had worked as prosecutors in their careers, according to The Globe’s analysis.
The Premier has ignited a storm of controversy in recent days, repeatedly defending the appointment of two former political aides to the committee that recommends potential judges. He has said that it is his right to put “like-minded” judges in the province’s courtrooms who will be “tough” on criminals, citing harrowing accounts of recent carjackings and saying too many of those arrested were being released on bail.
Legal associations, retired chief justices and prominent lawyers have issued public warnings that Mr. Ford’s remarks, as well as his government’s changes in 2021 to the judicial appointment process, risked undermining public confidence in the fairness of the courts.
Ontario NDP Opposition Leader Marit Stiles said last week that the Premier was “casting a cloud” over all judicial appointments.
Veteran Toronto criminal-defence lawyer John Struthers said the much larger proportion of Crowns and lawyers who have acted as prosecutors winning spots on the bench threatens the balance of the justice system. He said a traditional 50-50 split between prosecutors and defence counsel had been upended by Mr. Ford.
“The defence bar is completely disheartened,” Mr. Struthers said, adding that he expects the changing nature of the bench to embolden police to overlook Charter rights and encourage justices of the peace and Crown attorneys to more aggressively deny bail or seek longer sentences. “It actually taints the entire system.”
Groups that speak for the legal profession also raised concerns over the numbers.
“Certainly there are a lot of factors that come into judicial appointments, including the pool of applicants, but the dramatic increase in the percentage that you’ve just cited, it’s concerning,” said Stephanie DiGiuseppe, a Toronto defence lawyer with Henein Hutchison Robitaille LLP who sits on the executive of the Criminal Lawyers’ Association.
“I expected there to be an increase,” she said. “I didn’t expect it to be that dramatic.”
Ontario Attorney-General Doug Downey, who has previously said he believes he should appoint judges who share his values, told reporters last week that he felt the recent battle over judicial appointments had sparked a “healthy debate” about the legal system.
He denied he was purposely elevating more Crown attorneys or lawyers who have acted as prosecutors as part of a crackdown on crime, despite the Premier’s recent comments.
But he also pointed to numbers from the appointments committee showing that since 1989, Ontario had elevated more than double the number of lawyers in private practice as it had Crown attorneys to the bench. However, these totals do not account for lawyers in private practice who acted as Crown agents.
“I just don’t think it’s relevant,” Mr. Downey said of the issue of whether a lawyer applying to become a judge had prosecution experience. “We’re looking for excellent lawyers who are qualified to do the job.”
The current controversy over who sits as a judge in Ontario followed the recent appointment of Mr. Ford’s two former aides to the province’s Judicial Appointments Advisory Committee (JAAC), which recommends candidates for the province’s lower Ontario Court of Justice. (Appointments to Ontario Superior Court and the Ontario Court of Appeal are federal.)
Opposition critics have also seized on the fact that one of the ex-aides recently named to chair the committee, former Ford deputy chief of staff Matthew Bondy, is a registered lobbyist for the Canadian subsidiary of a U.S. gun manufacturer, among other clients.
But the recent controversy is just the latest chapter: In 2021, Mr. Downey spearheaded legislative changes to the province’s judge-selection process. Prominent voices in the legal community had warned that the amendments would water down a process that had previously been widely praised for its non-partisanship since its establishment in 1988.
The new system now allows the government more control over 10 of the 13 members on the JAAC. The province still appoints seven members who are not lawyers or judges, but it also appoints representatives for three main lawyers associations, the Federation of Ontario Law Associations, the Law Society of Ontario and the Ontario Bar Association, picking from lists of three candidates the groups provide. (A member from the law society is not currently listed on the committee’s website.)
The Chief Justice of the Ontario Court of Justice appoints two members, and the Judicial Council, which investigates complaints against judges and is made up of judges, lawyers and government appointees, appoints another.
Mr. Downey’s 2021 changes also require the advisory committee to produce a ranked shortlist of at least six candidates for the Attorney-General to choose from, instead of a minimum shortlist of two. The Attorney-General, who recommends his choice for cabinet to approve, can also reject this list and ask for another six names.
The selection of federal judges has also faced widespread criticism for alleged political interference in recent years. And Quebec imposed a stricter new system in 2011 after a scandal over alleged political interference in the selection of judges.