Ontario Must Make Judicial Appointments Process More Transparent
Since Doug Ford and the Ontario Progressive Conservatives were elected with a majority government in 2018, concerns about the potential politicization of the judicial appointment process have swirled.
In an interview with TVO’s Steve Paikin in November of 2019, Attorney General Doug Downey raised eyebrows when he spoke of his desire to see judicial appointments based upon shared values. Critics worried the comments would preface increased political influence in the province’s judiciary.
Two years later, the Ontario government controversially amended the judicial appointment process with Bill 245. The amendments gave the Attorney General more influence over the Judicial Appointments Advisory Committee (JAAC), an independent committee that receives applications for judicial vacancies, assesses their merit, and subsequently offers shortlists to the Attorney General for potential appointment.
Although unconnected to the amendments, JAAC has stopped producing annual reports that are supposed to be made available to the public and tabled in the Legislative Assembly by the Attorney General.
Neither JAAC nor Ministry of the Attorney General have explained the absence of reports.
An employee of Legislative Assembly’s Information Services branch confirmed they haven’t received JAAC reports for the years 2019, 2020, 2021, and 2022. JAAC’s secretary, Marlene Mills, says “the Annual Reports from 2019 onwards are not yet publicly available. Once available, they will be posted on the Ontario Courts website.”
Efforts to reach members of JAAC were unsuccessful. Of the eight that were contacted via email and phone only two responded but neither provided further details.
JAAC’s 2018 report was tabled in the Legislative Assembly on April 5, 2022, approximately two weeks after Rachel Curran was appointed Chair of JAAC. Well known in Canadian political circles, Curran once served as director of policy for former Prime Minister Stephen Harper.
A freedom of information request for JAAC’s reports from 2019-2022 was denied by the Ministry of the Attorney General. In its response letter, the Ministry said “a search was conducted and no responsive records were located.” It also noted that JAAC is not subject to Ontario’s freedom of information legislation.
In a separate statement, a spokesperson for the Ministry confirmed “the reports haven’t been submitted yet.” The Ministry declined a request for an interview, saying “the committee operates independently of the government and we have no further comment.”
Professor Peter Russell was integral to the development of JAAC, serving as its Chair when it began as a three-year pilot project in the late 1980s. JAAC was subsequently formalized in legislation in the mid 1990s. It was the first of its kind in Canada and has evolved into best practice for governments to maintain the integrity and impartiality of the judiciary.
Asked to comment on the absence of annual reports, Russell said it’s a “disappointing performance” for JAAC, since they were a de facto requirement even before they became a statutory obligation.
He said partially removing the hand of government from the judicial appointment process is “correct and right” but that trade-off comes with the expectation that the process “is accountable in a democratic way.” The public is entitled to basic statistics on the committee’s activities and “that requires a report,” says Russell.
Without annual reports, Russell worries Ontarians “can’t be assured that the Committee is continuing to do its work the way it’s supposed to do its work.” While partisan interests sometimes play a role in government appointments, he says there ought to be no discretion in abiding by statutory obligations. He therefore has strong words for Curran: “She’s not performing her public duty.”
Erin Crandall is an Associate Professor in the Department of Politics at Acadia University. Her research and teaching focuses on law and politics, and she’s examined judicial appointment processes in Canada. She says several years of missing annual reports from JAAC “seems strange,” noting that “these reports are not hard to make.”
According to Crandall, “there is no wiggle room” based on the language of JAAC’s statutory obligation. She also highlights the fact that the legislation seems to imply JAAC is obligated to make its reports public irrespective of whether they’ve been tabled in the Legislative Assembly. “The absence of both would suggest the Committee is not meeting the requirements,” she says.
Although few people pay attention to the judicial appointment process, Crandall thinks the statistics gleaned from such reports are vital for public policy. For example, it wasn’t clear why federal judicial appointments had historically privileged male applicants until historical statistics were available to the public. She believes that “without that data, there is no opportunity for the public to hold any political actor to account.”
The absence of annual reports is further complicated by the fact that the government’s 2021 legislative amendments require JAAC to collect and make public demographic information from judicial candidates. For Crandall, a lack of transparency in diversifying the pool of potential appointees has several consequences.
First, it may reduce “the legitimacy of the institution,” if its members don’t reflect the diversity of the communities they serve. Second, in a system that’s experienced patronage historically, removing the potential interference of a governing party is necessary to ensure impartiality. Third, a lack of diversity further entrenches a history of appointments that have tended to draw from a narrow segment of the population and excluded women and people of colour, among others.
Because most of JAAC’s activities aren’t public facing, “there has to be this transparency in order to provide the accountability for the work that they do,” Crandall says.
The Official Opposition critic, Kristyn Wong-Tam, says Attorney General Downey is “hiding and protecting a process that is flawed, a process that is now steeped in in deep political patronage, nepotism and cash for access.” Despite the strong language, they say he’s “given us nothing else to work with.”
According to Wong-Tam, the issue fits neatly in a broader pattern from the Ontario PCs, one “mired in controversy when it comes to appointments” across the province. They will write a letter to the Attorney General Downey, asking what’s behind the absence of JAAC’s annual reports and when Ontarians can expect them to be publicly accessible.
The lack of explanation from JAAC and Ministry of the Attorney General raises the thorny question of who ought to ensure the former is satisfying its statutory obligations.
JAAC is supposed to “independent” and “non-partisan,” says Crandall. According to her, “you wouldn’t necessarily want a mechanism for the Attorney General to be able to intervene in the actions of the JAAC, but all of this is predicated on the committee itself performing its functions as required under the statute.”
Wong-Tam says that while a variety of stakeholders may have a hand in addressing the issue, the ultimate responsibility falls on Attorney General Downey and Premier Doug Ford: “The Attorney General should be prodding. It’s actually because the Attorney General has his own obligation based on statute to table an annual report.”
Russell would like to see Attorney General Downey apprise the Legislative Assembly of “JAAC’s failure to meet its statutory obligations.” From there, the government and other members of the Legislative Assembly could create a committee to address the issue, “including the possibility of replacing the entire membership of [JAAC].”
Arguably, the Attorney General can simply ask JAAC to satisfy its statutory obligations without prejudicing the independence of the committee. That would allow the Attorney General to satisfy his own statutory obligations, which he seems content to ignore.
Trust in the judiciary is essential in a democratic society. That trust is being compromised by the near silence from Attorney General Downey and JAAC. At the very least, both owe the public an explanation and must produce the missing annual reports for the past four years.