Potential constitutional challenge over Doug Ford ‘like-minded’ judges controversy

The Ford government could face a constitutional challenge over the premier’s efforts to appoint “like-minded” judges to enforce the Progressive Conservative party’s tough-on-crime policies.

Premier Doug Ford has faced blowback after appointing former government staffers to the Judicial Appointments Advisory Committee (JAAC) to make recommendations for Ontario Court of Justice judges who oversee criminal, family and child welfare cases.

On Wednesday, Ford “quadrupled down” on his comments that suggest his government was seeking more conservative-leaning judges to appoint to Ontario courtrooms, comments that have caused alarm within the province’s legal community.

Democracy Watch, a grassroots political watchdog, is planning to file a court challenge over the constitutionality of the government’s approach to selecting judges and its concerns over the potential impact on fairness for those accused of a crime.

“The system is just too political, too partisan and too cabinet-controlled to be constitutional,” said Duff Conacher with Democracy Watch. “It violates the charter right to impartial and independent courts and the constitutional principle of judicial independence.”

At issue are the changes the Ford government made to the appointments committee and process in 2021.

The government passed new laws that gave the attorney general more control over the JAAC by increasing the number of committee members who can be picked by the province.

The committee was also instructed to provide the attorney general with a list of six potential candidates to fill any judicial vacancy – up from two – while the law empowered the attorney general to reject the list entirely and request six additional names.

The law has been on the books for nearly three years, but Ford’s recent comments about the appointment of judges raised new questions over the government’s overall intent for judicial independence.

“Premier Ford’s comments and actions with regard to the appointments (to the) advisory Committee just provides further evidence that Ontario changed its judicial appointment system in order to appoint conservatives, and that’s unconstitutional,” Conacher told Global News.

Conacher pointed to Section 11 of the Canadian Charter of Rights and Freedoms which enshrines the rights of an accused in a criminal case.

“Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal,” the charter reads. Conacher believes Ford’s comments are “clear evidence” that the government is interfering with Charter rights.

At the same time, after days of amped-up rhetoric over judicial appointments, coupled with graphic yet unverified descriptions of gun violence from Premier Ford, Ontario’s attorney general tried to tone down the government’s comments.

Doug Downey, who was repeatedly pressed on the issue by political opponents during Question Period at Queen’s Park, said discussing politics with judicial candidates “is not appropriate” and that his government only appoints “balanced” judges.

“I do not give any direction to any judge at any time,” Downey said. “Judges don’t take direction, it would be foolish to try.”

Downey’s comments are in stark contrast to Premier Ford – who ultimately signs off on government appointments along with his cabinet – who explicitly stated he wanted like-minded judges appointed to Ontario courtrooms.

“We’re going to triple down on getting judges that believe in throwing someone in jail when they kick the doors in, put a gun to people’s heads, terrorize kids,” Ford told the Ontario legislature on Tuesday.

“I’m sick and tired of judges letting these people out on bail, we’re going to hire tough judges,” Ford said to applause from the Ontario PC caucus.

On Thursday, Downey said giving judges specific instruction would be “crossing a line” and that the 89 judges appointed under his tenure as the attorney general have been “excellent.”

“They are cream of the crop and I couldn’t tell you who donated or voted conservative,” Downey said.

NDP Leader Marit Stiles said it was evidence that the premier and his attorney general are “not on the same page.”

“(The Premier) is very clear that the intention is to politicize the courts to put conservatives into the judge role,” Stiles told journalists at Queen’s Park.